UNIVERSITY  OF  CALIFORNIA. 


Class 

~~\ 


I 

i 


THE  MYSTERY  OF 
THE  PINCKNEY  DRAUGHT 


THE  MYSTERY  OF  THE 
PINCKNEY  DRAUGHT 


BY 
CHARLES  C.  NOTT 

FORMERLY 

Chief  Justice  of  the  United  States  Court  of  Claims 


NEW  YORK 

THE  CENTURY  CO. 

1908 


Copyright,  1908,  by 
THE  CENTUKY  Co. 

Published,    'Novemler,    1908. 


TO 

CEPHAS  BRAINERD 

OF  THE  NEW  YORK  BAR 

A  SOUND  LAWYER  AND  A  LONG-TRIED  FRIEND 


192840 


CONTENTS 

CHAPTER  PAGE 

I.     STATEMENT  OF  THE  CASE    ....       3 
II.     THE  DRAUGHT  IN  THE  STATE  DEPART- 
MENT       16 

III.  OF  THE  ISSUE  OF  FRAUD      ....     23 

IV.  MADISON  AS  A  WITNESS  .      .      .      .      .29 
V.    MADISON  AS  AN  ADVOCATE    ....     40 

VI.     THE  POSITION  TAKEN  BY  MADISON     .     58 

VII.     THE  PLAGIARISMS 65 

VIII.     THE  IMPROBABILITIES 85 

IX.     THE  OBSERVATIONS 105 

X.     THE  SILENCE  OF  MADISON    ....   143 
XI.     THE       WILSON       AND       EANDOLPH 

DRAUGHTS 158 

XII.     THE     COMMITTEE'S     USE     OF     THE 

DRAUGHT 206 

XIII.  WHAT  BECAME  OF  THE  DRAUGHT   .     .  225 

XIV.  WHAT  PINCKNEY  DID  FOR  THE  CON- 

STITUTION     243 

XV.     CONCLUSIONS  ON  THE  WHOLE  CASE     .  257 
XVI.     OF  PINCKNEY  PERSONALLY      .      .      .  278 

APPENDIX 

MR.    CHARLES   PINCKNEY  7s  DRAUGHT 

OF  A  FEDERAL  GOVERNMENT  .      .      .  295 
DRAUGHT  OF  THE  COMMITTEE  OF  DE- 
TAIL         306 

INDEX  .  325 


THE  MYSTERY  OF 
THE  PINCKNEY  DEAUGHT 


THE  MYSTERY  OF 
THE  PIKCKNEY  DRAUGHT 

CHAPTER  I 

STATEMENT  OF  THE  CASE 

WHEN  I  began  the  studies  which  have  re- 
sulted in  this  book  someone  asked  me 
what  I  was  doing,  and  I  chanced  to  answer  that 
I  was  looking  into  the  mystery  of  Pinckney's 
draught  of  the  Constitution.  Afterwards  I 
received  a  letter  from  Professor  J.  Franklin 
Jameson  in  which  he  spoke  of  the  uncertain- 
ties attending  the  draught  as  "mysteries"; 
and  later  I  found  that  Jared  Sparks,  back  in 
1831,  had  been  engaged  in  the  same  study  and 
had  used  the  same  term.  With  two  such 
scholars  as  Professor  Jameson  and  Mr. 
Sparks  recognizing  the  knowable  but  unknown 
element  which  we  call  mystery,  I  retain  the 
term  which  I  chanced  to  use. 

"A  true  mystery,  instead  of  ending  dis- 
cussion, calls  for  more."    "What  constitutes 

3 


THE  PINCKNEY  DRAUGHT 

a  mystery  is  the  unknown  which  is  certainly 
connected  with  the  known.  A  mystery  there- 
fore is  unfinished  knowledge. ' ' 1 

At  the  opening  of  the  Convention  which 
framed  the  Constitution,  Charles  Pinckney  of 
South  Carolina  presented  a  draught  of  a 
constitution  that  was  referred  to  the  Commit- 
tee of  the  Whole.  This  draught  was  not  a 
subject  of  notice  or  comment  by  any  speaker 
or  writer  of  the  time.  One  might  infer  from 
the  silence  of  all  records  and  writers  that  it 
was  the  fanciful  scheme  of  an  individual 
which  exercised  no  influence  whatever  on  the 
Convention  and  did  not  contribute  a  single 
line  or  sentence  to  the  Constitution. 

On  the  adjournment  of  the  Convention  its 
records  and  papers  were  placed  under  seal 
and  the  obligation  of  secrecy  was  set  upon  its 
members.  When  ultimately  the  seals  were 
broken  and  the  package  was  opened,  more 
than  thirty  years  afterwards,  the  draught  of 
Pinckney  was  not  found.  John  Quincy 
Adams  then  Secretary  of  State  applied  to 
Pinckney  for  a  copy;  and  he  on  the  30th  of 

iDr.  William  Hanna  Thomson,  Brain  and  Personality,  p. 
278. 

4 


STATEMENT  OF  THE  CASE 

December  1818,  sent  to  the  Secretary  of  State 
the  duplicate  or  copy  of  the  draught  now  in 
the  Department  of  State.  The  document  was 
published  and  remained  unquestioned  until  in 
1830,  six  years  after  the  death  of  Pinckney, 
it  came,  or  was  brought,  to  the  attention  of 
Madison;  and  he  at  different  times  wrote  to 
at  least  four  persons  concerning  it  and  also 
prepared  a  statement  which  was  subsequently 
published  with  it  in  Gilpin's  edition  of  Madi- 
son's Journal,  and  in  Elliot's  Debates;  and 
then  the  Pinckney  draught  slept  unnoticed  in 
constitutional  publications  until  a  review  in 
the  columns  of  the  Nation  awakened  an  in- 
terest in  Mr.  Worthington  C.  Ford  and  he  in 
1895  published  the  letter  which  accompanied 
the  draught  when  it  was  placed  in  the  State 
Department.  Nevertheless,  if  the  copy  in  the 
Department  is  identical  in  terms,  or  substan- 
tially identical  in  terms,  with  the  paper  which 
Pinckney  presented  to  the  Convention,  then 
Charles  Pinckney  contributed  more  of  words 
and  provisions  to  the  Constitution  of  the 
United  States  than  any  other  man.  And  this 
draught  so  prepared  by  him  was  so  largely 
adopted  in  a  silent  way  that  the  law  student 

5 


THE  PINCKNEY  DRAUGHT 

who  might  chance  to  read  it,  not  knowing  of 
the  comment  of  Madison  and  its  rejection  by 
all  commentators,  would  be  tempted  to  speak 
of  the  Constitution  of  the  United  States  as  the 
constitution  of  Pinckney. 

The  reason  why  the  Pinckney  draught  has 
received  so  little  attention,  and  he  has  received 
no  credit  at  all  for  what  apparently  is  an  ex- 
traordinary piece  of  constitutional  work  can 
be  readily  explained. 

The  statement  of  Madison  is  written  in  tem- 
perate and  guarded  terms ;  and  it  is  manifest 
that  he  was  careful  to  speak  with  courtesy  of 
Pinckney  and  to  furnish  an  explanation  in  the 
nature  of  a  bridge  over  which  the  friends  of 
Pinckney,  then  deceased,  might  retreat.  But 
what  he  does  say  instantly  brings  the  reader's 
mind  to  the  conclusion  that  the  paper  in  the 
State  Department  is  not  the  paper — that  it  is 
not  a  substantial  copy  of  the  paper,  which  was 
before  the  Convention.  Story  had  been  ap- 
pointed by  Madison  and  it  was  not  for  Story 
to  accept  what  Madison  rejected;  and  Story 
was  so  great  a  man,  so  great  a  judge  and  com- 
mentator, that  it  was  not  for  lesser  men  to  re- 
verse him.  Madison's  comment  and  Story's 

6 


STATEMENT  OF  THE  CASE 

silence  have  united  to  condemn  the  draught  so 
effectively  that  while  printed  and  reprinted  it 
has  been  as  unnoted  as  if  it  had  never  been 
written.  The  final,  judicial  edict  of  George 
Bancroft  expressed  the  general  judgment 
when  he  wrote  of  the  original  draught  which 
was  actually  before  the  Convention,  "No  part 
of  it  was  used,  and  no  copy  of  it  has  been  pre- 
served. ' ' 

Moreover  Madison  is  too  great  an  authority 
to  be  lightly  questioned,  the  highest  authority 
that  exists  concerning  the  proceedings  of  the 
Convention;  and  he  asserts  and  undertakes 
to  demonstrate  that  the  one  paper  can  not  be 
a  true  copy  of  the  other.  He  designates  pro- 
visions which  he  says  originated  in  the  Con- 
vention and  could  not  have  been  predeter- 
mined by  Pinckney;  and  still  more  conclu- 
sively, as  he  thinks,  he  points  to  the  fact  that 
the  paper  in  the  Department  contains  provi- 
sions to  which  Pinckney  was  himself  opposed, 
provisions  against  which  he  spoke  and  voted  in 
the  Convention.  Here  Madison  builds  his 
bridge.  Mr.  Pinckney,  he  suggests,  furnished 
this  copy  many  years  after  the  event  (nearly 
32  years),  after  he  had  become  an  old  man  and 

7 


THE  PINCKNEY  DRAUGHT 

the  record  of  events  had  faded  in  his  memory ; 
and  probably  as  the  work  of  the  Convention 
went  on  he  had  used  a  copy  of  his  draught  as 
a  memorandum  and  had  interlined  in  it  pro- 
visions which  the  Convention  framed;  and 
when  he  sent  the  copy  to  the  Secretary  of 
State  he  had  forgotten  this,  or  had  gradually 
come  to  regard  the  interlined  matter  as  his 
own.  A  writer  like  Story  with  the  training  of 
a  lawyer  and  a  judge  on  finding  the  authen- 
ticity of  the  copy  impeached  in  part  would  be 
almost  certain  to  exclude  it  wholly  from  the 
consideration  of  the  jury.  Historical  analysis 
and  research  may,  nevertheless,  render  that 
clear  which  is  obscure  and  show  us  where  the 
work  of  Pinckney  begins  and  ends. 

There  are  some  extrinsic  facts  which  hither- 
to unknown  should  be  noted. 

In  the  first  place  this  letter  of  Pinckney 
anticipates  one  of  Madison 's  criticisms  and 
explains  away  his  strongest  point. 

"It  may  be  necessary  to  remark/*  he  says, 
"that  very  soon  after  the  Convention  met 
I  changed  and  avowed  candidly  the  change 
of  my  opinion  on  giving  the  power  to  Con- 
gress to  revise  the  State  laws  in  certain  cases, 

8 


STATEMENT  OF  THE  CASE 

and  in  giving  the  exclusive  power  to  the  Sen- 
ate to  declare  war,  thinking  it  safest  to  re- 
fuse the  first  altogether  and  to  vest  the  latter 
in  Congress/'  Hunt's  Madison,  III,  p.  22. 

As  to  one  of  these  things  concerning  which 
Pinckney  says  he  changed  his  mind  after  the 
Convention  met,  the  power  of  Congress  to  re- 
vise the  laws  of  the  States,  the  assertion  is  not 
sustained  by  Madison's  record  of  the  proceed- 
ings. He  undoubtedly  did  change  his  mind 
but  not  until  after  the  adjournment  of  the 
Convention.  There  was  however  another  pro- 
vision in  his  draught  to  which  his  assertion 
would  apply.  Concerning  it  he  did  change  his 
mind  and  "avowed  candidly  the  change  of  his 
opinion"  and  did  so  "very  soon  after  the  Con- 
vention met."  This  is  the  provision  which  de- 
clares that  members  of  the  lower  house  shall 
be  chosen  by  the  people  of  the  several  States. 
Article  3.  As  early  as  the  6th  of  June  he  pro- 
posed that  they  should  be  chosen  by  the  legis- 
latures of  the  several  States.  Writing  32 
years  after  the  event  and  when  the  record  had 
faded  in  his  memory,  the  two  things,  to  use 
Madison's  words,  "were  not  separated  by  his 
recollection. ' ' 

9 


THE  PINCKNEY  DRAUGHT 

The  letter  is  a  contemporaneous  declaration, 
given  at  the  moment  when  he  produced  the 
document  and  placed  it  on  file  in  the  Depart- 
ment of  State,  that  the  copy,  like  the  original, 
contained  provisions  which  he  opposed  in  the 
Convention.  With  this  contemporaneous  no- 
tice to  the  Secretary  of  State  one  of  Madi- 
son's objections  which  at  first  seemed  insuper- 
able, if  it  does  not  fall  to  the  ground,  at  least 
becomes  susceptible  of  explanation;  and  the 
retention  in  the  copy  of  the  draught  of  these 
apparently  inconsistent  things,  accompanied 
at  the  time,  as  they  were,  by  Pinckney 's  dec- 
laration, not  only  removes  the  objection  of 
Madison  but  tells  strongly  in  favor  of  the 
draught  being  what  Pinckney  represented  it 
to  be. 

In  the  second  place  Pinckney  speaks  of 
having  "several  rough  draughts  of  the  Con- 
stitution" ("4  or  5  draughts  "  he  says)  and  he 
adds  ' l  that  they  are  all  substantially  the  same, 
differing  only  in  words  and  the  arrangement 
of  the  articles. "  Pinckney  had  preserved 
them  certainly  until  the  end  of  the  year  1818, 
and  "numerous  notes  and  papers  which  he 
had  retained  relating  to  the  Federal  Conven- 

10 


STATEMENT  OF  THE  CASE 

tion."  He  also  says  that  "with  the  aid  of  the 
journal  of  the  Convention  and  the  numerous 
notes  and  memorandums  I  have  preserved,  it 
would  now  be  in  my  power  to  give  a  view  of 
the  almost  insuperable  difficulties  the  Conven- 
tion had  to  encounter,  and  of  the  conflicting 
opinions  of  the  members;  and  I  believe  I 
should  have  attempted  it  had  I  not  always 
understood  Mr.  Madison  intended  it.  He 
alone  possessed  and  retained  more  numerous 
and  particular  notes  of  their  proceedings  than 
myself."  These  "numerous  notes  and  memor- 
andums, more  numerous  and  particular ' '  than 
those  preserved  by  any  other  person,  Madi- 
son * l  alone ' '  excepted,  and  with  them  the  '  '  sev- 
eral rough  draughts,"  which  he  found  with  the 
other  papers  on  his  return  to  Charleston  in 
1818,  existed  when  Pinckney  wrote  his  letter 
and  placed  his  copy  of  the  draught  in  the 
State  Department.  They  existed  both  to  re- 
fresh his  memory  and  to  refute  him  if  he  was 
not  acting  in  good  faith.  He  acknowledged 
Madison  to  be  his  superior  in  "notes  and  mem- 
orandums" and  a  particular  knowledge  of  the 
proceedings  of  the  Convention;  and  Madison 
was  still  living,  and  Pinckney  by  placing  his 

11 


THE  PINCKNEY  DRAUGHT 

copy  of  the  draught  in  the  State  Department 
invited  Madison  and  all  the  world  to  examine 
it.  That  was  the  time  when  Madison  should 
have  spoken.  It  is  most  unfortunate  that  he 
waited  fourteen  years,  and  until  after  Pinck- 
ney's  death  and  the  death  of  every  other  mem- 
ber of  the  Convention,  before  he  spoke. 

Like  many  another  young  lawyer  I  came 
upon  Pinekney's  draught  in  Elliot's  Debates 
and  was  astounded  by  finding  so  large  a  part 
of  the  Constitution  apparently  written  by  the 
hand  of  a  man  whom  I  had  never  heard  ex- 
tolled as  a  framer  of  the  Constitution;  and 
like  many  another  young  lawyer,  I  accepted  the 
reasons  of  Madison  and  the  silence  of  Story 
as  conclusive.  But  the  discovery  and  publica- 
tion of  Pinckney's  letter  in  1895  threw  new 
light  upon  the  subject  and  made  it  plain  that 
Madison's  objections  should  not  be  taken  as 
final  and  that  his  premises  needed  corrob- 
oration.  I  therefore  prepared  the  following 
inquiries  in  the  hope  that  I  could  persuade 
some  historical  scholar  to  take  up  this  work 
of  Constitutional  investigation. 

1.  Does  the  draught  in  the  State  Depart- 
ment upon  its  face  appear  to  be  an  author's 

12 


STATEMENT  OF  THE  CASE 

draught — a,  " rough  draught/'  as  Pinckney 
called  it — with  his  corrections,  erasures,  inter- 
lineations and  alterations  or  does  it  appear  to 
be  a  duplicate  or  a  fair  copy  of  an  original  or 
"rough"  draught?  It  is  in  the  handwriting  of 
Pinckney;  does  it  appear  to  be  his  original 
piece  of  work,  or  an  engrossed  copy  made  by 
him  of  another  paper! 

2.  If  upon  the  face  of  the  instrument  it  ap- 
pears to  be  an  engrossed  copy,  though  in 
Pinckney 's  handwriting,  that  is  a  copy  of  the 
rough  draught  with  its  alterations  and  cor- 
rections engrossed  therein,  then  the  historical 
critic  must  proceed  to  try  the  issue  of  Pinck- 
ney's  truthfulness.  He  tells  the  Secretary  of 
State  at  the  time  when  he  produces  the  paper 
that  "it  is  impossible  for  me  now  to  say  which 
of  the  4  or  5  draughts  I  have  is  the  one. 
But  enclosed  I  send  you  the  one  I  believe  was 
it.  I  repeat,  however,  that  they  are  substan- 
tially the  same,  differing  only  in  form  and  un- 
essentials."  If  this  language  be  taken  liter- 
ally it  means  that  he  is  about  to  place  in  the 
archives  of  the  Department  of  State  one  of 
those  "original"  "4  or  5  draughts"  and  as  he 
believes  the  very  one  of  which  he  prepared  an 

13 


THE  PINCKNEY  DRAUGHT 

engrossed  copy  for  the  use  of  the  Convention. 
If  the  language  be  not  taken  literally,  it  at 
least  means  that  he  sends  a  true  copy  of  one  of 
the  original  rough  draughts.  Is  there  any- 
thing in  the  draught  to  refute  either  repre- 
sentation? Does  it  contain  words,  phrases, 
clauses,  pro  visions  which  certainly  did  originate 
in  the  Convention;  which  were  ground  out 
there,  and  which  could  not  possibly  have  been 
anticipated  by  Pinckney  as  he  sat  in  his  study 
early  in  1787  making  draught  after  draught 
for  the  consideration  of  the  coming  Con- 
vention? 

3.  Finally,  it  will  be  apparent  on  reflection 
that  even  if  all  of  the  foregoing  issues  should  be 
decided  against  Pinckney ;  that  is  to  say,  if  it 
should  be  found  that  the  paper  in  the  State  De- 
partment is  not  an  original  draught — is  not 
one  of  the  four  or  five  draughts  to  which  Pinck- 
ney alludes,  or  that  it  contains  interlineations 
of  which  Pinckney  could  not  have  been  the 
author,  even  then  after  deciding  all  doubtful 
points  against  him  a  great  deal  will  remain 
which  must  have  been  his ;  and  historical  criti- 
cism and  careful  analysis  will  be  able  to  meas- 
ure this  residuum  and  give  us  a  fair  estimate 

14 


STATEMENT  OF  THE  CASE 

of  its  value,  so  that  we  can  know  with  tolera- 
ble certainty  how  much  of  the  Constitution 
was  the  work  of  Pinckney. 

As  I  have  not  been  able  to  persuade  any 
competent  scholar  to  take  up  this  inquiry 
which  seems  to  me  to  be  an  inquiry  due  to  the 
truthfulness  of  our  Constitutional  history  and 
to  the  memory  of  a  framer  of  the  Constitu- 
tion whose  work  was  not  questioned  until  after 
his  death,  I  have  felt  that  the  work  has  become 
a  duty  and  that  the  duty  has  been  imposed 
on  me. 


15 


CHAPTEE  II 

THE  DRAUGHT  IN  THE  STATE  DEPARTMENT 

r  1 1HE  Pinckney  draught  in  the  Department 
I  of  State  is  written  on  unruled  paper  lar- 
ger than  common  foolscap,  hand  made,  and 
with  untrimmed  edges.  The  interlineations 
are  few  and  trivial  and  clerical,  the  insertion 
of  an  omitted  word  and  the  like.  There  are 
two  exceptions  to  this.  In  article  3  the 
draught  says,  "The  House  of  Delegates  shall 

consist  of to  be  chosen  from  the  different 

States  in  the  following  proportions :  For  New 

Hampshire for  Massachusetts — — "    etc., 

etc.  But  the  names  of  the  States  are  not  set 
forth  in  the  body  of  the  instrument  as  they 
stand  in  all  editions,  being  written  on  the  mar- 
gin and  the  place  where  they  should  have  been 
inserted  being  noted  by  a  mark. 

The  second  exception  is  in  the  last  line  of 
article  5.  The  subject  of  the  paragraph  is  the 
veto  power;  and  the  clause  "all  bills  sent  to 
the  President  and  not  returned  by  him  within 

16 


THE  DRAUGHT  IN  THE  DEPARTMENT 

days  shall  be  Laws,  unless  the  legisla- 
ture, by  their  adjournment,  prevent  their  re- 
turn" was  originally  written,  "unless  the  leg- 
islature by  their  adjournment  prevent  its 
return,  in  which  case  it  shall  not  be  the  law." 
The  words  "its"  and  "it"  are  erased  with 
the  pen  and  the  words  "their"  and  "they" 
written  over  them  and  the  article  "a"  and  a 
final  "s"  are  stricken  out  so  that  the  clause  as 
corrected  reads  as  printed. 

In  at  least  two  particulars  the  draught  is 
erroneously  printed  in  almost  all  editions. 
Pinckney  did  not  write  "Art.  1,"  "Art  II," 
etc.  Above  the  first  article  of  the  draught  in 
the  middle  of  the  line,  is  written  "Article  1." 
Over  all  the  other  articles,  and  likewise  in 
the  middle  of  the  line,  are  simply  the  arabic 
figures  "2,"  "3,"  "4,"  etc.,  without  the  word 
"article."  The  second  particular,  in  which 
many  printed  copies  are  erroneous,  is  in  ar- 
ticle 3.  The  printer  has  there  run  together 
two  parts  of  distinct  sentences.  The  true 
reading  is  that  each  member  of  the  House  of 
Delegates  shall  be  "a  resident  in  the  State  he 
is  chosen  for,"  the  sentence  closing  with  the 
word  "for."  A  new  sentence  then  begins: 

17 


THE  PINCKNEY  DRAUGHT 

"  Until  a  census  of  the  people  shall  be  taken 
in  the  manner  hereinafter  mentioned,  the 

House  of  Delegates  shall  consist  of to  be 

chosen  from  the  different  States  in  the  follow- 
ing proportions,"  etc.  But  in  some  we  find 
that  a  delegate  shall  be  "a  resident  of  the 
State  he  is  chosen  for  until  a  census  of  the 
people  shall  be  taken  in  the  manner  herein- 
after mentioned,"  which  makes  the  intended 
provision  senseless. 

The  first  of  the  foregoing  inquiries  (p.  12 
ante),  Does  the  draught  in  the  State  Depart- 
ment upon  its  face  appear  to  be  an  author's 
draught,  a  rough  draught  with  his  corrections, 
erasures,  interlineations  and  alterations,  or 
does  it  appear  to  be  an  engrossed  copy  made 
by  him  of  another  paper,  has  been  answered 
decisively  by  Mr.  Gaillard  Hunt  in  his  edition 
of  the  Writings  of  Madison: 

"The  penmanship  of  all  three  papers  (the 
draught  and  the  letter  to  the  Secretary  of 
State  and  a  previous  letter  to  the  Secretary 
December  8,  1818)  is  contemporaneous,  and 
the  letter  of  December  30  and  the  draught  were 
written  with  the  same  pen  and  ink.  This  may 
possibly  admit  of  a  difference  of  opinion  be- 

18 


THE  DRAUGHT  IN  THE  DEPARTMENT 

cause  the  draught  is  in  a  somewhat  larger  chi- 
rography  than  the  letter,  having  been,  as  befit- 
ted its  importance,  written  more  carefully. 
But  the  letter  and  the  draught  are  written 
upon  the  same  paper,  and  this  paper  was  not 
made  when  the  Convention  sat  in  1787.  There 
are  several  sheets  of  the  draught  and  one  of 
the  letter,  and  all  bear  the  same  watermark, 
<  Russell  and  Co.  1798.'  "  Vol.  Ill,  p.  16. 

The  draught,  as  before  shown,  contains  a 
few  verbal  corrections,  one  or  two  trivial  eras- 
ures, two  or  three  obviously  necessary  inter- 
lineations but  no  alteration.  That  is  to  say  it 
contains  no  alteration  of  substance — nothing 
which  indicates  on  the  part  of  the  writer  an 
intent  to  change  or  add  to  the  substance  of 
what  he  has  written — there  is  no  additional 
provision  interlined,  no  obscure  expression 
amplified,  no  omitted  thought  supplied — the 
corrections  are  one  and  all  clerical.  The  doc- 
ument, therefore  upon  its  face  does  not  appear 
to  be  a  " rough  draught." 

When  the  Secretary  of  State  had  written  to 
Pinckney  "I  now  take  the  liberty  of  address- 
ing you,  to  inquire  if  you  have  a  copy'  of  the 
Draught  proposed  by  you,  and  if  you  can  with- 

19 


THE  PINCKNEY  DRAUGHT 

out  inconvenience  furnish  me  at  an  early  day, 
with  a  copy  of  it"  and  Pinckney  replied  that 
among  his  notes  and  papers  he  had  * 'found 
several  rought  draughts  of  the  Constitution'' 
and  that  "I  send  you  the  one  I  believe  was  it," 
and  with  the  letter  sent  a  document  which  ob- 
viously was  not  a  rough  draught,  the  fair  and 
reasonable  interpretation  of  his  language 
(apart  from  an  intent  to  defraud)  is  that  he 
was  sending  what  the  Secretary  of  State  had 
asked  for,  viz.,  "a  copy"  of  the  "copy  of  the 
draught  proposed  by  you"  to  the  Convention; 
and  that  what  he  meant  to  say  was,  "I  send 
you  'a  fair  copy  made  by  myself  of  the  one  I 
believe  was  it. ' ' 

What  a  rough  draught  is  may  be  seen  by  re- 
ferring to  the  literal  reprint  of  the  Journal  of 
Madison  in  the  Documentary  History  of  the 
Constitution  by  the  Department  of  State.  It 
is  something  which  requires  an  editor  to  put 
the  author's  changes  and  amendments  in  their 
proper  places.  A  constructive  piece  of  work 
as  long  as  the  Pinckney  draught,  must  have 
been  cut,  transposed,  changed,  added  to  over 
and  over  again.  To  be  intelligible  it  would 

20 


THE  DRAUGHT  IN  THE  DEPARTMENT 

require  editing,  and  the  Secretary  had  in- 
formed Pinckney  that  he  wanted  the  "copy" 
for  publication,  and  that  he  wanted  it  "at  an 
early  day":  and  no  man  would  have  parted 
with  such  an  important  paper  and  confided  the 
editing  of  it  to  some  unknown  clerk  in  an  exec- 
utive department.  In  a  word  Pinckney  did 
what  any  man  similarly  circumstanced  would 
have  done,  he  kept  the  original  paper  in  his 
possession,  and  sent  to  the  Secretary  of  State 
what  he  had  asked  for,  "a  copy  of  it." 

If  we  turn  now  to  the  printed  copy  of  the 
draught  and  note  the  extent  of  article  6,  con- 
taining the  enumeration  of  the  powers  of  Con- 
gress, and  the  extent  of  the  second  paragraph 
of  article  8,  setting  forth  the  powers  and  du- 
ties of  the  President,  and  if  we  remember  that 
all  this  matter  is  to  be  found  in  the  Constitu- 
tion, it  becomes  instantly  apparent  that 
absorption  of  all  these  provisions  by  inter- 
lineation as  suggested  by  Madison  was  abso- 
lutely impossible.  In  a  word  the  bridge  which 
Madison  built  breaks  down.  Therefore  we 
must  face  the  inexorable  alternative:  either 
Pinckney  gave  to  tne  Convention  a  draught 

21 


THE  PINCKNEY  DRAUGHT 

substantially  like  that  in  the  State  Depart- 
ment or  he  fraudulently  fabricated  that 
draught  after  the  Secretary  of  State  had 
called  upon  him  for  a  copy. 


22 


o 


CHAPTEE  III 

OF  THE  ISSUE  OF  FEAUD 

N  this  issue  of  fraud  we  must  first  look 


at  the  circumstances  as  they  existed  in 
December,  1818. 

Pinckney  had  been  a  Senator  of  the  United 
States,  Governor  of  South  Carolina,  Minister 
to  Spain  and  had  just  been  elected  to  the 
important  Congress  which  was  to  grapple 
with  the  National  questions  involved  in  the 
Missouri  Compromise.  He  may  have  been  a 
vain  man  as  Madison  thought  him — (most 
men  of  great  ability  and  prominence  are  ego- 
tistical; it  is  egotism  ordinarily  which  impels 
them  to  the  front)  but  no  one  has  intimated 
that  Pinckney  could  have  been  guilty  of  an  act 
which  from  moral  and  historical  points  of  view 
was  little  better  than  a  crime.  Some  one  con- 
tributed the  many  provisions  which  are  to  be 
found  in  the  Constitution,  and  it  would  have 
been  infamous  to  filch  the  honor  from  the  real 
author.  The  most  felicitous  sentence  in  the 

23 


THE  PINCKNEY  DRAUGHT 

Constitution,  ' '  The  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States, ' '  if  it  was  Pinck- 
ney's,  passed  through  the  Committee  of  De- 
tail, the  Committee  of  Style  and  the  Conven- 
tion without  the  change  of  a  single  word.  It 
was  one  of  those  rare  sentences  of  which 
everybody  approved;  and  it  is  not  lightly  to 
be  assumed  that  in  1818  Pinckney  would  steal 
such  a  conspicuous  sentence  from  the  Consti- 
tution and  place  it  at  the  head  of  one  of  his 
own  articles. 

Moreover  if  the  draught  was  a  tissue  of 
fraud  detection  was  always  possible;  and  de- 
tection would  have  blasted  the  life  of  Pinckney 
nowhere  with  greater  severity  than  in  his  own 
State.  In  1818  sixteen  other  members  of  the 
Convention  were  still  living,  and  three  of  them 
had  been  members  of  the  Committee  of  Style, 
and  two  of  them  (Charles  Cotesworth  Pinck- 
ney and  Pierce  Butler),  had  been  delegates 
from  South  Carolina.  Letters  too  from  mem- 
bers might  disclose  the  fatal  truth.  A  son 
of  some  member  might  come  forward  with  his 
father's  draught  of  some  of  these  provisions. 
Autobiographies,  diaries  and  personal  remin- 

24 


THE  ISSUE  OF  FRAUD 

iscences  of  members  might  exist.  Detection 
was  possible,  and  in  the  ordinary  course  of 
human  events,  certain.  Conversely  it  is 
proper  here  to  note  the  fact  that  in  all  these 
years  not  a  line  of  writing  has  been  found  to 
thrown  a  shade  of  discredit  upon  the  Pinckney 
draught. 

The  temptation,  too,  was  relatively  small. 
The  Constitution  was  not  then  in  the  estima- 
tion of  the  American  people  what  it  is  now. 
No  one  then  had  proclaimed  it  to  be  "the 
greatest  work  ever  thrown  off  by  the  brain 
and  purpose  of  man."  In  1818  the  first  work 
on  the  Constitution  (Eawle's)  had  not  yet  been 
written.  Monroe  was  President,  and  the 
country  was  just  emerging  from  the  poverty 
which  followed  the  war  of  1812-15.  Pennsyl- 
vania and  Georgia  had  defied  the  federal 
power  and  the  latter  had  passed  a  statute  mak- 
ing it  a  crime  punishable  with  death  to  en- 
force the  process  of  the  Supreme  Court  of  the 
United  States.  State  feeling  was  always 
stronger  in  the  South  than  in  the  North  and 
out  of  State  feeling  had  grown  the  doctrine  of 
State  rights.  The  South  at  that  time  could 
cherish  no  warm  regard  for  the  man  who  had 

25 


THE  PINCKNEY  DEAUGHT 

first  written  "all  acts  made  by  the  legislature 
of  the  United  States,  pursuant  to  this  Consti- 
tution, and  all  treaties  made  under  the  au- 
thority of  the  United  States  shall  be  the  su- 
preme law  of  the  land." 

It  must  also  be  noted  that  Pinckney  was  not 
a  volunteer  in  this  matter — that  he  did  not 
thrust  his  draught  upon  the  Secretary  of  State 
— that  he  never  came  before  the  public  claim- 
ing to  have  contributed  this  or  anything  to 
the  Constitution.  The  subject  was  introduced 
by  Mr.  Adams  and  not  by  Pinckney;  and  the 
draught  was  produced  in  response  to  Mr. 
Adams'  inquiries  concerning  it.  Pinckney 
showed  no  great  solicitude  about  it  then.  His 
letter  is  slovenly  and  careless  and  manifestly 
not  written  for  posterity,  and  it  contains  no 
indication  of  his  regarding  it  as  any  thing 
more  than  a  personal  explanation.  It  was  due 
to  Mr.  Adams  to  tell  him  that  this  draught 
which  he  inclosed  was  not  a  literal  duplicate 
of  the  one  which  he  had  placed  before  the 
Convention;  and  it  was  due  to  himself  to  say 
that  it  contained  provisions  of  which  he  had 
subsequently  disapproved  and  which  he  had 
opposed  in  the  Convention.  Pinckney  cer- 

26 


THE  ISSUE  OF  FEAUD 

tainly  did  not  suppose  that  he  was  writing 
history  or  biography  when  he  wrote  that 
letter. 

The  letter  demonstrates  how  inadequately 
Pinckney  estimated  the  greatness  of  the  Con- 
stitution and  overestimated  his  own  part  in 
the  work,  and  how  poorly  the  Constitution  was 
then  esteemed.  At  the  beginning  it  had  been 
but  an  experiment  and  in  the  opinion  of  many 
men  an  experiment  that  would  fail.  Under 
the  moulding  hands  of  Jay  and  Marshall  it 
had  become  to  Southern  statesmen  more  and 
more  an  object  of  distrust  and  dislike.  It 
seemed  then  a  growing  menace  to  the  rights  of 
the  South  and  the  sovereignty  of  South  Car- 
olina. For  Pinckney  to  have  asserted  pub- 
licly that  he  was  the  chief  author  of  the  instru- 
ment and  of  its  most  offensive  provisions 
would  have  inclined  his  fellow  citizens  in 
Charleston  to  say  that  instead  of  boasting 
of  his  work  he  ought  to  be  ashamed  of  it ;  that 
where  State  rights  were  involved  it  was  at 
best  ambiguous ;  and  that,  if  he  was  the  author 
of  the  draught,  he  more  than  any  other  man 
had  enabled  the  judges  to  interpret  the  Con- 
stitution in  favor  of  Federal  supremacy. 

27 


THE  PINCKNEY  DEAUGHT 

Certainly  if  this  issue  of  fraud  had  been 
involved  in  a  criminal  case  Pinckney  would 
have  been  able  to  establish  two  things — good 
character,  and  the  absence  of  a  motive  to  de- 
fraud. 


28 


CHAPTER  IV 

MADISON  AS  A  WITNESS 

HAVING  now  seen  what  Pinckney  said  in 
1818  and  what  he  did  and  where  he 
stood,  let  us  turn  to  the  other  party  in  the 
controversy,  Madison,  and  examine  the  testi- 
mony which  he  gave  and  the  evidence  on  which 
he  relied. 

His  journal  (as  edited  hy  Gilpin)  after  set- 
ting forth  the  speech  of  Eandolph  on  the  29th 
or  May,  and  the  reference  of  the  15  resolutions 
of  the  Virginia  delegates,  to  the  Committee  of 
the  Whole,  contains  this  record : 

"Mr.  Charles  Pinckney  laid  before  the 
house  a  draught  of  a  federal  government  to 
be  agreed  upon  between  the  free  and  inde- 
pendent states  of  America.'' 

"Ordered  that  the  same  be  referred  to  the 
Committee  of  the  Whole  appointed  to  con- 
sider the  state  of  the  American  Union." 

But   Yates's    Minutes    give    us    one    thing 
Mr.  Pinckney,  a  member  from  South 
29 


THE  PINCKNEY  DRAUGHT 

Carolina,  then  added  that  he  had  reduced  his 
ideas  of  a  new  government  to  a  system,  which 
he  then  read." 

Madison's  report  of  Pinckney 's  speech  on 
the  25th  of  June  stops  with  the  subject  of 
State  governments  and  the  propriety  of  hav- 
ing but  one  general  system.  But  Yates  gives 
in  a  condensed  form  the  conclusion  of  Pinck- 
ney's  speech  and  contains  the  following  sen- 
tences : 

"I  am  led  to  form  the  second  branch  (of  the 
legislature)  differently  from  the  report.  I 
have  considered  the  subject  with  great  atten- 
tion and  I  propose  this  plan  (reads  it)  and  if 
no  better  plan  is  proposed  I  will  then  move  its 
adoption." 

Once  while  reflecting  upon  the  extraordi- 
nary, the  seemingly  inexplicable  course  which 
Madison  pursued  in  relation  to  the  Pinckney 
draught — positive  and  yet  evasive;  alleging 
but  never  testifying — my  eye  happened  to 
fall  on  this  minute  of  Yates  and  it  suggested 
the  fact  of  these  repeated  omissions  of  Mad- 
ison's to  state  the  contents  of  the  Pinckney 
draught,  and  I  asked  myself  the  question,  is 
it  possible  that  Madison  never  knew  what  the 

30 


MADISON  AS  A  WITNESS 

draught  contained?  In  an  examination  of  the 
facts  relating  to  this  question  I  found  that 
the  entry  in  the  journal,  above  quoted,  "Mr. 
Charles  Pinckney  laid  before  the  house  a 
draught"  etc.  had  been  taken  word  for  word 
from  the  entry  of  the  Secretary  of  the  Con- 
vention in  the  official  Journal.  I  found  also 
that  at  four  different  times  in  the  course  of  the 
debates  Madison  designated  the  draught  by 
four  different  terms;  as  Mr.  Pinckney 's 
"plan"  as  Mr.  Pinckney 's  "resolutions"  as 
Mr.  Pinckney 's  "motion"  as  Mr.  Pinckney 's 
"propositions,"  not  one  of  which  expressed 
the  idea  of  a  formulated  Constitution.  It  is 
therefore  evident  that  Madison  did  not  hear 
Pinckney  read  his  draught  as  Yates  did,  and 
did  not  hear  him  say  as  Yates  did,  "that  he 
had  reduced  his  ideas  of  a  new  government  to 
a  system. ' '  My  inference  then  was  and  still  is, 
that  Madison  was  temporarily  absent  from  the 
hall  when  Pinckney  produced  and  read  his 
draught  and  that  on  hearing  of  it  he  went  to 
the  Secretary's  desk  and  copied  the  entry  in 
the  official  journal — an  entry  which  is  also  si- 
lent as  to  Pinckney  having  read  the  draught 
and  which  describes  it  in  language  entirely 

31 


THE  PINCKNEY  DRAUGHT 

different  from  Yates's  and  entirely  different 
from  Pinckney 's,  for  Pinckney 's  draught  does 
not  profess  to  be  an  agreement  "between  the 
free  and  independent  States  of  America," 
but  is  avowedly  an  act  of  the  people  of  the 
United  States.  It  therefore  appears  both 
positively  and  negatively  that  Madison  was 
not  present  when  Pinckney  presented  his 
draught;  that  he  could  not  have  heard  Pinck- 
ney 's  designation  of  it  as  a  "system"  and 
could  not  have  heard  Pinckney  read  it  to  the 
Convention.  He  regrets  in  another  place  that 
he  did  not  take  a  copy  of  it  because  of  its 
length  and  it  may  be  inferred  from  what  may 
be  termed  his  unfailing  ignorance  of  its  con- 
tents that  he  did  not  read  it  because  of  its 
length. 

Madison  had  a  poor  opinion  of  Pinckney,  a 
very  poor  opinion;  and  he  held  fast  to  it  all 
through  his  life.  During  the  sitting  of  the 
Convention  the  draught  was  referred  to  re- 
peatedly in  discussions  and  motions  and  ref- 
erences. Madison  recorded  what  was  said, 
and  the  more  important  of  the  motions  and 
references,  but  his  opinion  of  Pinckney  was 
so  poor  that  he  did  not  put  himself  to  the 

82 


MADISON  AS  A  WITNESS 

trouble  of  stepping  to  the  Secretary's  desk  and 
reading  the  draught,  much  less  of  taking  a 
copy  of  it.  In  October  1787,  after  the  disso- 
lution of  the  Convention,  he  wrote  from  New 
York  to  Washington  and  Jefferson,  the  follow- 
ing letters: 

James  Madison  to  General  Washington. 
NEW  YOKK,  Octr.  14,  1787. 

"I  add  to  it  a  pamphlet  which  Mr.  Pinck- 
ney  has  submitted  to  the  public,  or  rather 
as  he  professes,  to  the  perusal  of  his  friends, 
and  a  printed  sheet  containing  his  ideas  on  a 
very  delicate  subject,  too  delicate  in  my  opin- 
ion to  have  been  properly  confided  to  the 
press.  He  conceives  that  his  precautions 
against  any  further  circulation  of  the  piece 
than  he  himself  authorizes,  are  so  effectual 
as  to  justify  the  step.  I  wish  he  may  not  be 
disappointed.  In  communicating  a  copy  to 
you,  I  fulfill  his  wishes  only." 

(Gaillard  Hunt's  Writings  of  Madison,  Vol. 
V.,  p.  9.) 

Madison  to  Jefferson. 

NEW  YORK,  Octr.  24,  1787. 


33 


THE  PINCKNEY  DRAUGHT 

"To  these  papers  I  add  a  speech  of  Mr.  C. 
P.  on  the  Mississippi  business.  It  is  printed 
under  precautions  of  secrecy,  but  surely  could 
not  have  been  properly  exposed  to  so  much 
risk  of  publication. " 

(Id.,  p.  39.) 

Madison  to  General  Washington. 

New  York,  Oct.  28,  1787. 

"Mr.  Charles  Pinckney's  character  is,  as 
you  observe  well  marked  by  the  publications 
which  I  enclosed.  His  printing  the  secret  pa- 
per at  this  time  could  have  no  motive  but  the 
appetite  for  expected  praise;  for  the  subject 
to  which  it  relates  has  been  dormant  a  consid- 
erable time,  and  seems  likely  to  remain  so." 

(Id,  p.  43.) 

In  the  memorandum  "For  Mr.  Paulding" 
written  shortly  before  April  6,  1831,  reap- 
pears Madison's  poor  opinion  of  Pinckney. 
"It  has  occurred  to  me  that  a  copy  (of  the 
Observations)  may  be  attainable  at  the  print- 
ing office,  if  still  kept  up,  or  in  some  of  the 
libraries  or  historical  collections  in  the  city. 
When  you  can  snatch  a  moment,  in  your  walks 
with  other  views,  for  a  call  at  such  places,  you 

34 


MADISON  AS  A  WITNESS 

will  promote  an  object  of  some  little  interest 
as  well  as  delicacy  by  ascertaining  whether 
the  article  in  question  can  be  met  with." 

On  the  25th  of  November,  1831,  he  wrote  to 
Jared  Sparks,  "I  lodged  in  the  same  house 
with  him,  and  he  was  fond  of  conversing  on 
the  subject.  As  you  will  have  less  occasion 
than  you  expected  to  speak  of  the  Convention 
of  1787,  may  it  not  be  best  to  say  nothing  of 
this  delicate  topic  relating  to  Mr.  Pinckney, 
on  which  you  cannot  use  all  the  lights  that 
exist  and  that  may  be  added? " 

On  the  6th  of  January,  1834,  he  wrote  to 
Thomas  S.  Grimke: 

' '  There  are  a  number  of  other  points  in  the 
published  draught,  some  conforming  most 
literally  to  the  adopted  Constitution,  which,  it 
is  ascertainable,  could  not  have  been  the  same 
in  the  draught  laid  before  the  Convention. 
The  conformity,  and  even  identity  of  the 
draught  in  the  Journal,  with  the  adopted  Con- 
stitution, on  points  and  details  the  results  of 
conflicts  and  compromises  of  opinion  apparent 
in  the  Journal,  have  excited  an  embarrassing 
curiosity  often  expressed  to  myself  or  in  my 
presence.  The  subject  is  in  several  respects 

35 


THE  PINCKNEY  DRAUGHT 

a  delicate  one ;  and  it  is  my  wish  that  what  is 
now  said  of  it  may  be  understood  as  yielded  to 
your  earnest  request,  and  as  entirely  confined 
to  yourself.  I  knew  Mr.  Pinckney  well,  and 
was  always  on  a  footing  of  friendship  with 
him.  But  this  consideration  ought  not  to 
weigh  against  justice  to  others,  as  well  as 
against  truth  on  a  subject  like  that  of  the  Con- 
stitution of  the  United  States." 

And  on  the  5th  of  June,  1835,  he  wrote  to 
William  A.  Duer: 

"I  have  marked  this  letter  ' confidential, ' 
and  wish  it  to  be  considered  for  yourself  only. 
In  my  present  condition  enfeebled  by  age  and 
crippled  by  disease,  I  may  well  be  excused  for 
wishing  not  to  be  in  any  way  brought  to  public 
view  on  subjects  involving  considerations  of  a 
delicate  nature." 

Madison  wrote  with  characteristic  caution 
and  courtesy  but  there  is  something  very  sug- 
gestive in  the  way  he  uses  the  word  "deli- 
cate. ' '  Neither  Mr.  Paulding  nor  Mr.  Sparks 
nor  Mr.  Grimke  nor  Judge  Duer  could  have 
doubted  that  there  was  something  wrong  in 
the  draught — something  so  wrong  that  Madi- 
son did  not  wish  to  speak  of  it. 

36 


MADISON  AS  A  WITNESS 

It  is  manifest  that  when  Madison  first  read 
the  draught  in  the  State  Department,  he  was 
surprised.  He  does  not  say  so,  and  is  very 
guarded  in  what  he  does  say;  yet  it  is  per- 
fectly plain  that  the  magnitude  of  this  con- 
tribution to  the  Constitution  was  something 
absolutely  new  to  him.  He  better  than  any 
pther  man  was  supposed  to  know,  the  work 
and  workings  of  the  Convention,  and  lo,  here 
was  a  document  of  more  importance  than  any 
given  in  his  journal,  or  found  among  the  rec- 
ords of  the  Convention,  and  of  its  contents  he 
had  been  ignorant  until  the  document  was  laid 
before  the  world  by  the  State  Department ! 

Between  1818  and  1836,  the  magnitude  of 
this  and  its  importance  as  an  historical  docu- 
ment was  forced  upon  Madison's  attention 
^  from  time  to  time  by  younger  men  who.  took 
a  warmer  interest  in  the  Constitution  and  its 
history  and  its  framers  than  their  fathers  had 
taken;  and  it  is  apparent  that  he  was  as- 
tounded at  the  historical  importance  of  the 
document.  Marshall  was  then  drawing  near 
to  the  end  of  his  majestic  judicial  reign,  and 
though  assailed  and  thwarted  by  the  cavilings 
and  dissents  of  lesser  men,  had  placed  his  im- 

37 


THE  PINCKNEY  DEAUGHT 

perishable  impress  upon  the  Constitution  and 
revealed  to  his  countrymen  its  greatness  and 
consistency  and  power  of  nationality.  The 
growing  interest  in  the  great  instrument 
would  not  be  quieted.  Madison  would  fain  have 
kept  silent,  as  he  advised  his  two  most  trusted 
correspondents  to  do.  But  he  could  not !  He 
was  the  greatest  of  authorities,  living  or  dead, 
in  all  that  pertained  to  the  making  of  the 
Constitution;  the  last  living  member  of  the 
Convention;  the  sole  chronicler  of  its  secret 
history.  It  is  as  plain  now  as  it  was  then  that 
he  must  speak.  "What  could  he  say? 

Madison  was  not  able  to  say,  "I  read  the 
Pinckney  draught  when  it  was  before  the  Con- 
vention, I  studied  it,  I  knew  the  contents  well ; 
the  paper  in  the  State  Department  is  not  a 
substantial  duplicate  of  that  paper."  There 
remained  then  but  this  alternative;  he  must 
confess  that  he  knew  no  more  about  the  Pinck- 
ney draught  than  did  the  men  who  were  in- 
terrogating him  or  he  must  do  precisely  what 
he  did  do,  he  must  attack  it  on  documentary 
evidence  as  an  advocate,  and  must  remain  si- 
lent as  a  witness.  If  he  had  testified  as  a  wit- 
ness ;  if  he  had  said  of  his  own  knowledge  that 

38 


MADISON  AS  A  WITNESS 

the  paper  which  Pinckney  placed  in  the  State 
Department  was  not  a  copy  of  the  paper 
which  he  had  laid  before  the  Convention  and 
was  not  a  substantial  duplicate  worthy  of  con- 
sideration, that  would  have  been  the  end  of  the 
matter.  Certainly  I  should  never  have  felt 
called  upon  to  make  the  present  investigation. 
But  Madison  did  not  so  testify.  Under  the 
pressure  of  steadily  increasing  interest  in  the 
Constitution,  inquirer  after  inquirer  came  to 
him  to  explain  how  a  man  whom  they  did  not 
regard  as  a  wise  statesman  could  have  con- 
tributed so  much  to  the  Constitution,  which 
they  had  regarded  as  the  composite  work  of 
a  number  of  great  men.  They  did  not  come 
to  him  for  reasons  or  advice  or  references  to 
documentary  evidence,  but  because  he  was  the 
one  survivor  of  the  men  who  could  have  testi- 
fied, the  only  chronicler  of  what  had  happened 
in  the  Convention  from  first  to  last,  and  they 
sought  his  personal  knowledge.  They  asked 
him  to  tell  them  what  he  knew  concerning  the 
Pinckney  draught,  the  original  draught,  the 
one  which  was  before  the  Convention ;  and  he 
answered  not  a  word !  We  must  reject  Madi- 
son as  a  witness  because  he  rejected  himself. 

39 


CHAPTER  V 

MADISON    AS    AN   ADVOCATE 

AT  this  day  Madison  is  regarded  as  one 
of  the  chief  statesmen  in  the  group  of 
leading  framers  of  the  Constitution;  but  his 
best  appreciated  work  was  his  keeping  the  only 
record  which  we  have  of  that  august  assembly. 
He,  who  dealt  with  the  great  questions  of  the 
hour,  may  not  have  been  aware  how  much 
good  work  the  Pinckney  draught  was  doing  in 
an  unnoticed  way.  Madison  spared  no  ef- 
fort to  make  his  journal  complete,  and  no  lit- 
tle time  in  doing  so.  He  copied  and  inserted 
in  it  the  Virginia  resolutions  and  the  New 
Jersey  resolutions;  and  he  also  inserted 
Pinckney 's  long  speech  of  the  25th  of  June; 
and  yet  he  did  not  procure  and  apparently  did 
not  even  read  and  certainly  did  not  insert  in 
his  journal  Pinckney 's  plan  or  draught.  He 
seems  to  have  felt  sadly  a  certain  self -convic- 
tion of  this,  and  to  have  realized  the  fact  that 

40 


MADISON  AS  AN  ADVOCATE 

the  omission  of  the  Pinckney  draught  from  his 
record  was  an  irretrievable  error.  To  a  man 
holding  the  author  of  the  draught  in  con- 
tempt, it  must  have  seemed  preposterous  in 
1831  for  the  shade  of  Pinckney  to  stalk  upon 
the  historic  stage  and  say,  I  formulated  the 
Constitution.  It  was  my  hand  that  sketched 
its  outline,  leaving  it  to  the  members  of  the 
Convention,  myself  among  the  number,  to 
change  its  provisions  and  modify  its  terms. 
My  draught  was  changed  and  modified,  and 
the  conflicting  views  of  the  framers  were 
welded  together  by  notable  compromises  and 
persuasive  arguments,  but  nevertheless  I  con- 
tributed more  of  form  and  substance,  more  of 
detail  and  language  to  the  instrument  known 
as  the  Constitution  of  the  United  States  than 
any  other  man. 

Accordingly,  Madison,  while  he  closed  his 
lips  as  a  witness,  rallied  his  failing  forces  as 
an  advocate  and  proceeded  to  give  from  time 
to  time  first  to  one  correspondent  and  then  to 
another  and  finally  to  the  people  of  the  United 
States,  in  a  "Note"  to  accompany  his  Journal 
when  published,  all  the  reasons  he  could  mar- 
shal from  the  written  record  of  the  case  why 

41 


/g&futS^. 

/  OF   THE  A 

fi   UNIVERSITY 

V  OF  / 


THE  PINCKNEY  DRAUGHT 

the  draught  in  the  State  Department  was  an 
impossible  verity. 

At  what  time  the  Pinckney  draught  was  first 
brought  to  Madison's  attention  I  have  not 
been  able  to  discover;  but  on  the  5th  of  May, 
1830,  Mr.  Jared  Sparks  had  been  spoken  or 
written  to  on  the  subject,  for  he  then  replied 
to  Madison,  writing  from  Washington,  ' i  Since 
my  return  I  have  conversed  with  Mr.  Adams 
concerning  Charles  Pinckney 's  draught  of  a 
constitution.  He  says  it  was  furnished  by 
Mr.  Pinckney."  Among  Madison's  papers 
there  is  also  a  memorandum  entitled,  for  Mr. 
Paulding  in  which  he  says: 

"Much  curiosity  and  some  comment  have 
been  exerted  by  the  marvellous  identities  in 
a  plan  of  government  proposed  by  Charles 
Pinckney  in  the  convention  of  1787,  as  pub- 
lished in  the  Journals  with  the  text  of  the 
constitution,  as  finally  agreed  to." 

This  memorandum  is  not  dated,  but  is 
placed  chronologically  before  a  letter  to  Mr. 
J.  K.  Paulding  dated  April,  1831. 

On  the  21st  of  June,  1831,  he  wrote  to  Jared 
Sparks:  "May  I  ask  you  to  let  me  know  the 
result  of  your  correspondence  with  Charles- 

42 


MADISON  AS  AN  ADVOCATE 

ton  on  the  subject  of  Mr.  Pinckney's  draught 
of  a  Constitution  for  the  United  States  as 
soon  as  it  is  ascertained  1" 

On  the  27th  of  June,  he  again  wrote  to  Mr. 
Paulding  saying  that  he  has  "received  the 
volume  of  pamphlets  containing  that  of  Mr. 
Charles  Pinckney." 

On  the  25th  of  November,  1831,  he  again 
wrote  to  Mr.  Sparks:  "The  simple  question 
is  whether  the  draught  sent  by  Mr.  Pinckney 
to  Mr.  Adams  and  printed  in  the  Journal  of 
the  Convention  could  be  the  same  with  that 
presented  by  him  to  the  Convention  on  the 
29th  May,  1787,  and  I  regret  to  say  that  the 
evidence  that  that  ivas  not  the  case  is  irre- 
sistible." He  instances  the  election  of  mem- 
bers of  Congress  by  the  people,  and  the  de- 
bate of  June  6  as  "a  sufficient  example. " 
"But  what  decides  the  point "  is  a  letter 
"from  him  to  me"  dated  March  28,  1789 — a 
letter  quoted  by  Gilpin  of  which  I  shall  here- 
after speak. 

Madison  is  guarded  in  all  he  says,  but  it  is 
perfectly  plain  that  while  he  wished  to  im- 
press upon  Paulding  and  Sparks  the  idea  that 
the  draught  which  Pinckney  placed  in  the 

43 


THE  PINCKNEY  DRAUGHT 

State  Department  was  not  the  draught  which 
he  presented  to  the  Convention,  he  at  the  same 
time  shrank  from  bringing  on  a  controversy 
and  from  irritating  the  friends  of  Pinckney 
and  forcing  them  into  an  investigation  of  the 
matter.  It  was,  he  evidently  thought,  a  case  of 
' ' least  said,  soonest  mended."  Madison  was 
a  sagacious  and  an  experienced  statesman 
who  thoroughly  understood  his  countrymen; 
Paulding  and  Sparks  were  his  friends  and 
followers ;  what  he  wished  to  have  said  passed 
into  Gilpin's  edition  of  the  Journal  and  El- 
liot's Debates,  and  gave  the  unquestioning 
world  what  he  wished  it  to  know  and  nothing 
more.  The  bridge  which  he  built  was  safely 
passed  over  by  the  friends  of  Pinckney  and 
his  method  of  destroying  the  good  name  of 
the  draught  without  needlessly  smirching  the 
good  name  of  Pinckney,  and  without  inciting 
a  controversy  on  the  subject  has  been  so  suc- 
cessful that  for  seventy  years  the  draught  has 
remained  silently  condemned,  and  no  man  has 
even  thought  that  an  investigation  could  pos- 
sibly reverse  the  accepted  judgment. 

But  on  the  25th  of  April    1835,  William  A. 
Duer  of  New  York  wrote  to  Madison  on  the 

44 


MADISON  AS  AN  ADVOCATE 

same  subject  and  making  the  same  inquiry. 
Judge  Duer  was  an  eminent  and  brilliant 
member  of  the  New  York  bar  and  was  then 
President  of  Columbia  College  and  had  been 
a  well  known  judge.  For  three  years  the 
ghost  of  Pinckney  had  not  been  raised  to  dis- 
turb the  serenity  of  Madison's  old  age. 
Paulding  and  Sparks  were  his  friends  and 
were  publicists.  To  them  he  could  say  little 
which  would  mean  much;  and  for  them  his 
wishes  and  suggestions  would  be  as  binding 
as  a  law.  Judge  Duer  was  not  such  a  per- 
sonal friend  and  to  him  Madison  must  speak 
more  freely;  he  was  the  possessor  of  a  strong 
inquiring  mind,  and  to  him,  Madison  must  so 
strongly  state  the  case  that  it  would  seem  un- 
questionable. He  therefore,  with  characteris- 
tic caution  lingered  until  the  5th  of  June,  and 
then  in  his  reply  to  Judge  Duer  made  a  su- 
preme, if  not  final  effort. 

In  this  letter,  he  brings  up  again,  the  elec- 
tion of  members  by  "the  people "  and  Pinck- 
ney 's  speech  against  it  on  the  6th  of  June. 
"Other  discrepancies,"  he  says,  "will  be  found 
in  a  source  also  within  your  reach,  a  pamphlet 
published  by  Mr.  Pinckney  soon  after  the  close 

45 


THE  PINCKNEY  DRAUGHT 

of  the  Convention "  ( Pinckney 's  Observa- 
tions). "A  friend  who  has  examined  and 
compared  the  two  documents  has  pointed  out 
the  discrepancies  noted  below. "  "One  con- 
jecture explaining  the  phenomenon  has  been 
that  Mr.  Pinckney  interwove  with  the  draught 
sent  to  Mr.  Adams  passages  as  agreed  to  in 
the  Convention  in  the  progress  of  the  work 
and  which  after  a  lapse  of  more  than  thirty 
years  were  not  separated  by  his  recollection. ' ' 
The  "discrepancies  noted  below "  are  for 
the  most  part  unimportant;  and  will  be  ex- 
amined hereafter;  but  there  is  one  which 
should  be  considered  now,  for  it  affects  Madi- 
son more  than  it  affects  Pinckney.  The  dis- 
crepancy referred  to  is  this :  In  the  Observa- 
tions Pinckney  says  that,  "in  the  best  in- 
stituted Legislatures  of  the  States  we  find 
not  only  two  branches  [of  the  legislature]  but 
in  some  ' i  a  council  of  revision ' ' ;  and  he  adds 
that  he  has  incorporated  this  "as  a  part  of 
the  system."  The  friend  says  "The  pam- 
phlet refers  to  the  following  provisions  which 
are  not  found  in  the  plan  furnished  to  Mr. 
Adams  as  forming  a  part  of  the  plan  pre- 
sented to  the  Convention:  The  executive 

46 


MADISON  AS  AN  ADVOCATE 

term  of  service  7  years.     2.     A  council  of  re- 
vision. ' ' 

The  statesmen  who  framed  the  Constitution 
were  sufficiently  statesmen  to  know  that  what 
we  call  the  veto  power  is  not  really  a  veto 
power;  and  that  the  President,  unlike  the 
Crown,  is  not  a  part  of  the  law-making  power. 
The  constitution  of  New  York  and  not  the 
constitution  of  Great  Britain  furnished  the 
framers  with  the  needed  model.  By  all  of 
them  it  was  known  that  the  duty  imposed  and 
intended  to  be  imposed  upon  the  President 
was  simply  a  duty  of  "revision."  This  has 
been  a  subject  of  judicial  inquiry  and  the  his- 
tory of  the  veto  provision  may  be  stated  in 
the  words  of  the  court : 

"At  an  early  day,  June  6,  this  question  of 
legislative  power  was  determined  by  two  de- 
cisive votes.  The  Convention  adopted  the 
principle  of  revision,  but  being  mindful,  as 
Kutledge  afterwards  said,  that  '  the  judges 
ought  never  to  give  their  opinion  on  a  law, 
till  it  comes  before  them,'  and  that  they  '  of 
all  men  are  the  most  unfit  to  be  concerned  in 
the  Eevisionary  Council,'  struck  out  Ean- 

47 


THE  PINCKNEY  DRAUGHT 

dolph's  '  convenient  number  of  the  national 
judiciary'  and  left  the  power  of  revision  in 
the  President  alone.  At  a  later  day,  August 
6th,  Eutledge  'delivered  in  the  Eeport  of  the 
Committee  of  Detail,'  the  committee  which 
embodied  the  previously  ascertained  views  of 
the  Convention  in  a  draught  of  the  proposed 
Constitution.  This  section  was  couched  in 
the  very  words  of  the  constitution  of  New 
York:  Every  bill  shall  be  presented  to  the 
President  'for  his  revision';  'if  upon  such 
revision'  he  approve  it,  he  shall  sign  it;  'if 
upon  such  revision  it  shall  appear  to  him  im- 
proper for  being  passed  into  a  law,'  he  shall 
return  it.  On  the  15th  of  August,  with  this 
word  revision  three  times  repeated,  'The 
thirteenth  section  of  article  6,  as  amended, 
was  then  agreed  to'  by  all  the  States.  It  is 
this  vote  which  is  expressive  of  the  final  intent 
of  the  Convention.  The  verbal  form  in  which 
the  provision  stands  in  the  Constitution  was 
the  work  of  the  Committee  of  Style. 

d 

"This  'revisionary  business,'  as  Madison 
calls  it,  came  up  again  and  again ;  appears  and 
reappears  in  his  Journal  from  the  6th  of  June 
to  the  16th  of  August;  was  considered  and  re- 

48 


MADISON  AS  AN  ADVOCATE 

considered,  discussed  and  rediscussed.  The 
views  of  members  swung  between  the  ex- 
tremes of  absolute  affirmative  power  in  Con- 
gress and  absolute  negative  power  in  the 
President.  The  proposition  of  Hamilton  'to 
give  the  Executive  an  absolute  negative  on  the 
laws,  *  identical  with  the  legislative  power  of 
the  Crown,  was  rejected  by  ten  States  and 
supported  by  none.  The  proposition  of  Madi- 
son to  add  the  judges  of  the  Supreme  Court  in 
the  ' revision'  of  bills  was  likewise  rejected. 
At  last  the  deliberations  ended  where  they  had 
begun.  The  Convention  held  fast  to  the  prin- 
ciple of  a  Council  of  Eevision  and  left  the  du- 
ties of  the  council  in  the  President  alone.  He 
was  to  be  the  Council  of  Eevision.  In  the 
words  of  Madison,  the  Convention  'gave  the 
Executive  alone,  without  the  judiciary,  the  re- 
visionary  control  on  the  laws,  unless  over- 
ruled by  two-thirds  of  each  branch.'  The 
United  States  v.  Weil  (29  Court  of  Claims  Ee- 
ports  523;  affirmed  in  La  Abra  Co.  v.  The 
United  States,  175  U.  S.  E.  423. 

Madison  forgot  that  en   the  6th  of  June 
South  Carolina  had  voted  ' '  no  "  on  the  motion, 

49 


THE  PINCKNEY  DRAUGHT 

to  make  ' '  a  convenient  number  of  the  National 
judiciary"  a  council  of  revision,  and  that  the 
vote  was  unanimous;  and  he  forgot  that 
he  had  written  with  his  own  hand  only  eight 
days  after  Pinckney  had  presented  his 
draught  to  the  Convention: 

"Mr.  Pinckney  had  been  at  first  in  favor  of 
joining  the  heads  of  the  principal  depart- 
ments, the  Secretary  of  War,  of  foreign  af- 
fairs, etc.,  in  the  council  of  revision.  He  had 
however  relinquished  the  idea  from  a  con- 
sideration that  these  could  be  called  on  by  the 
Executive  Magistrate  whenever  he  pleased  to 
consult  them.  He  was  opposed  to  an  intro- 
duction of  the  judges  into  the  business." 
Hunt's  Writings  of  Madison,  III.,  pp.  89,  111. 

According  to  Madison  there  was  a  discrep- 
ancy— more  than  a  discrepancy,  a  flat  contra- 
diction between  the  Observations  and  the 
draught  in  the  State  Department,  the  one  say- 
ing explicitly  that  in  "some  of  the  best  in- 
stituted legislatures  of  the  States"  there  was 
'  *  a  council  of  revision,  consisting  of  their  exec- 
utive and  principal  officers  of  government" 
and  that  he  had  "incorporated  it  as  part  of 
the  system";  the  other  containing  no  such 

50 


MADISON  AS  AN  ADVOCATE 

provision  but,  like  the  Constitution,  giving  the 
executive  alone  the  revisionary  control  of  the 
laws.  A  superficial  examination  of  the  case 
would  easily  bring  one  to  the  conclusion  that 
Pinckney  in  1818  omitted  the  council  of  re- 
vision from  the  draught  for  the  State  Depart- 
ment and  copied  from  the  Constitution  the 
provision  which  the  Convention  framed.  But 
the  brief  speech  of  Pinckney  written  down  con- 
temporaneously by  Madison  himself,  singu- 
larly vindicates  both  the  Observations  and  the 
draught  and  leaves  the  latter  stronger  than 
it  would  have  been  if  Madison's  friend  had 
not  furnished  "the  discrepancies  noted  be- 
low. " 

The  significance  of  the  term  "council  of 
revision"  was  not  known  to  the  friend  who 
arrayed  the  Observations  against  the  draught 
and  may  not  have  been  to  Judge  Duer. 
Neither  did  they  know  that  in  the  judgment 
and  understanding  of  the  Convention  the 
President  with  powers  and  duties  defined  as 
they  were  defined  was  in  legal  effect  the  em- 
bodiment of  the  council  of  revision.  But 
Madison  knew  it,  or  had  known  it.  He  too 
had  personally  participated  in  the  work  by 

51 


THE  PINCKNEY  DRAUGHT 

his  repeated  efforts  to  engraft  a  council  of 
revision  on  the  Constitution,  and  his  knowl- 
edge he  had  written  down  in  his  own  words. 
Certainly  he  had  no  right  to  attack  Pinckney 
through  his  unnamed  friend.  Certainly  he 
had  no  right  to  leave  Judge  Duer  to  infer  that 
the  discrepancies  noted  below  had  received  his 
scrutiny  and  approval.  His  Journal  he  knew 
would  be  published,  he  was  even  then  pro- 
viding for  it  in  his  will,  and  when  published 
it  would  contradict  the  discrepancy  noted  be- 
low and  sustain  the  copy  of  the  draught  which 
he  was  attacking.  The  obvious  explanation 
is  that  Madison's  failing  memory  failed  to 
record  his  own  words,  "the  Convention  gave 
the  executive  alone,  without  the  judiciary,  the 
revisionary  control  of  the  laws,"  and  Pinck- 
ney 's  express  declaration  as  early  as  the  6th 
of  June  that  "he  had  been  at  first"  in  favor 
of  a  council  of  revision  but  for  reasons  stated 
had  changed  his  mind. 

And  let  it  not  be  supposed  that  Madison 
deliberately  intended  to  deceive  or  that  he  was 
actuated  by  a  malignant  wish  to  deprive 
Pinckney  of  any  thing  which  he  really  be- 
lieved was  actually  his  due.  Madison  was 

52 


MADISON  AS  AN  ADVOCATE 

then  an  old  man — a  very  old  man — in  his  85th 
year  who  had  lived  long  and  under  the  strain 
of  great  labors  and  intense  excitements  and 
withering  anxieties.  He  was  too  old  and  too 
weary,  and  too  strongly  prejudiced  to  change 
his  mind  in  a  minute  or  to  reverse  the  judg- 
ment of  many  years  by  an  investigation  de 
novo. 

The  word  "  phenomenon "  in  his  letter  to 
Judge  Duer  reveals  his  state  of  mind  and  well 
explains  his  acts.  That  the  boy  who  had  lodged 
in  the  same  house  with  him  in  Philadelphia, 
the  youngest  member  of  the  Convention  as  he 
believed,  who  was  always  talking  about  his 
draught,  whom  he  disliked  and  underrated, 
that  he  should  appear  in  1818  as  the  chief  con- 
tributor to,  as  the  principal  draughtsman  of 
the  Constitution  of  the  United  States  was  in- 
deed to  him  a  phenomenon.  It  was  something 
which  he  could  not  really  believe.  There  is  a 
note  of  contrition  when  he  writes  that  "the 
length  of  the  document  laid  before  the  Con- 
vention and  other  circumstances  prevented  my 
taking  a  copy  at  the  time."  He  really  be- 
lieved that  if  he  had  procured  and  kept  a  copy 
of  the  draught  which  Pinckney  laid  before  the 

53 


THE  PINCKNEY  DRAUGHT 

Convention,  it  would  have  blown  to  pieces  this 
wild  pretentious  claim  which  he  had  laid  be- 
fore the  Secretary  of  State. 

And  Madison  made  a  great  mistake  when 
he  represented  Pinckney  to  Judge  Duer  as  an 
old  man  in  1818  whose  waning  recollection 
could  not  then  separate  the  real  from  the  ficti- 
tious in  the  draught  which  he  had  found 
among  his  papers  in  Charleston.  For  Madi- 
son in  1835,  when  he  wrote  to  Judge  Duer,  was 
twenty-five  years  older  than  Pinckney  was 
when  he  sent  the  draught  to  Mr.  Adams;  and 
twenty-five  years  at  that  end  of  life  is  no 
small  difference.  Moreover  his  memory  from 
his  youth  up  had  been  laden  and  taxed  with 
great  events.  It  was  fifty-two  years  since  he 
had  made  this  despondent  note  in  his  record 
of  the  debates  in  Congress: 

"  Monday,  March  17,  1783. 
"A  letter  was  received  from  General  Wash- 
ington, enclosing  two  anonymous  and  inflam- 
matory exhortations  to  the  army  to  assemble, 
for  the  purpose  of  seeking,  by  other  means, 
that  justice  which  their  country  showed  no 
disposition  to  afford  them.  The  steps  taken 

54 


MADISON  AS  AN  ADVOCATE 

by  the  general  to  avert  the  gathering  storm, 
and  his  professions  of  inflexible  adherence  to 
his  duty  to  Congress  and  to  his  country,  ex- 
cited the  most  affectionate  sentiments  towards 
him.  By  private  letters  from  the  army,  and 
other  circumstances,  there  appeared  good 
ground  for  suspecting  that  the  civil  creditors 
were  intriguing,  in  order  to  inflame  the  army 
into  such  desperation  as  would  produce  a  gen- 
eral provision  for  the  public  debts.  These 
papers  were  committed  to  Mr.  Oilman,  Mr. 
Dyer,  Mr.  Clark,  Mr.  Eutledge,  and  Mr.  Mer- 
cer. The  appointment  of  these  gentlemen  was 
brought  about  by  a  few  members,  who  wished 
to  saddle  with  this  embarrassment  the  men 
who  had  opposed  the  measures  necessary  for 
satisfying  the  army,  viz.,  the  half -pay  and  per- 
manent funds;  against  one  or  other  of  which 
the  individuals  in  question  had  voted. 

"This  alarming  intelligence  from  the  army, 
added  to  the  critical  situation  to  which  our 
affairs  in  Europe  were  reduced  by  the  vari- 
ance of  our  ministers  with  our  ally,  and  to 
the  difficulty  of  establishing  the  means  of  ful- 
filling the  engagements  and  securing  the  har- 
mony of  the  United  States,  and  to  the  confu- 

55 


THE  PINCKNEY  DRAUGHT 

sions  apprehended  from  the  approaching  res- 
ignation of  the  superintendent  of  finance,  gave 
peculiar  awe  and  solemnity  to  the  present  mo- 
ment, and  oppressed  the  minds  of  Congress 
with  an  anxiety  and  distress  which  had  been 
scarcely  felt  in  any  period  of  the  revolution. ' ' 

It  was  48  years  since  Madison  had  served  as 
the  most  laborious  member  of  the  Convention. 
It  was  28  years  since  he  had  seen  the  Navy  dis- 
graced by  the  surrender  of  the  Chesapeake  af- 
ter firing  only  a  single  gun — a  disgrace  caused 
by  the  shameful  negligence  and  incapacity  of 
administrative  officers  at  Washington  while 
he  was  a  member  of  Jefferson's  Cabinet.  It 
was  21  years  since  he  had  seen  the  Army  dis- 
graced by  the  negligence  of  his  own  Secretary 
of  War  and  the  incapacity  of  a  general  of  his 
own  choosing,  and  his  Capitol  burnt  and  him- 
self and  his  Cabinet  fugitives,  and  his  heroic 
wife,  her  friends  and  the  military  guard  of 
1 1  a  hundred  men  all  gone, ' '  resolutely  refusing 
to  leave  the  Executive  Mansion  until  she  had 
taken  "the  precious  portrait"  of  Washington 
from  its  frame  to  save  it  from  the  ignominy  of 
capture  by  a  British  Army.  The  Pinckney 

56 


MADISON  AS  AN  ADVOCATE 

draught  was  but  a  leaf  blown  aside  in  the  tu- 
mults of  his  troubled  life. 

But  there  remains  the  documentary  evidence 
which  Madison  adduced  and  the  specification 
of  plagiarism  which  he  filed;  and  apart  from 
Madison  and  apart  from  Pinckney  there  re- 
mains the  ultimate  question  which  every  stu- 
dent of  the  Constitution  must  desire  to  have 
examined,  and  if  possible,  answered,  "What 
provisions  of  the  Constitution  were  contribu- 
ted by  Pinckney"? 


57 


CHAPTEE  VI 

THE  POSITION  TAKEN  BY  MADISON 

r  MHE  position  taken  by  Madison  in  private 
I  letters  to  individuals,  he  had  a  right  to 
modify,  abandon  or  withdraw;  and  it  would 
not  be  treating  him  fairly  to  hold  him  to  words 
hastily  written  and  perhaps  inspired  by  an  im- 
pulse of  the  moment.  But  the  "Note  of  Mr. 
Madison  to  the  Plan  of  Charles  Pinckney" 
(Elliot  Vol.  5,  578)  deliberately  prepared  by 
him  for  future  publication,  and  intended  by 
him  to  accompany  the  draught  of  the  State 
Department  in  future  publications  so  that  it 
should  destroy  the  supposed  verity  of  the 
copy,  must  be  taken  as  the  final  expression  of 
his  judgment. 

"Note  of  Mr.  Madison  to  the  Plan  of 
Charles  Pinckney,  May  29,  1787. " 

"The  length  of  the  Document  laid  before  the 
Convention,  and  other  circumstances,  having 
prevented  the  taking  of  a  copy  at  the  time, 
that  which  is  ["here  inserted"  stricken  out] 

58 


THE  POSITION  TAKEN  BY  MADISON 

inserted  in  the  Debates  was  taken  from  the 
paper  furnished  to  the  Secretary  of  State,  and 
contained  in  the  Journal  of  the  Convention, 
published  in  1819  which  it'  being  taken  for 
granted  was  a  true  copy  was  not  then 
examined.  The  coincidence  .in  several  in- 
stances between  that  and  the  Constitution  as 
adopted,  having  attracted  the  notice  of  others 
was  at  length  suggested  to  mine.  On  com- 
paring the  paper  with  the  Constitution  in  its 
final  form,  or  in  some  of  its  Stages ;  and  with 
the  propositions,  and  speeches  of  Mr.  Pinck- 
ney  in  the  Convention,  it  was  apparent  that 
considerable  errour  had  crept  into  the  paper; 
occasioned  [" probably"  stricken  out]  pos- 
sibly by  the  loss  of  the  Document  laid  be- 
fore the  Convention,  (neither  that  nor  the 
Eesolutions  offered  by  Mr.  Patterson,  be- 
ing among  the  preserved  papers),  and  by  a 
consequent  resort  for  a  copy  to  the  rough 
draught,  in  which  erasures  and  inter-linea- 
tions  following  what  passed  in  the  Con- 
vention, might  be  confounded  in  part  at  least 
with  the  original  text,  and  after  a  lapse  of 
more  than  thirty  years,  confounded  also  in  the 
memory  of  the  Author. 

59 


THE  PINCKNEY  DEAUGHT 

"There  is  in  the  paper  a  similarity  in  some 
cases,  and  an  identity  in  others,  with  details, 
expressions,  and  definitions,  the  results  of  crit- 
ical discussions  and  modifications  in  the  Con- 
vention, that  ["cannot  be  ascribed  to  accident 
or  anticipation ' '  omitted]  could  not  have  been 
anticipated. 

"Examples  may  be  noticed  in  Article  VIII. 
of  the  paper ;  which  is  remarkable  also  for  the 
circumstance,  that  whilst  it  specifies  the  func- 
tions of  the  President,  no  provision  is  con- 
tained in  the  paper  for  the  election  of  such  an 
officer,  nor  indeed  for  the  appointment  of  any 
Executive'  Magistracy:  notwithstanding  the 
evident  purpose  of  the  Author  to  provide  an 
entire  plan  of  a  Federal  Government. 

"Again,  in  several  instances  where  the 
paper  corresponds  with  the  Constitution,  it  is 
at  variance  with  the  ideas  of  Mr.  Pinckney, 
as  decidedly  expressed  in  his  propositions, 
and  in  his  arguments,  the  former  in  the  Jour- 
nal of  the  Convention,  the  latter  in  the  report 
of  its  debates:  Thus  in  Art:  VIII.  of  the 
paper,  provision  is  made  for  removing  the 
President  by  impeachment;  when  it  appears 
that  in  the  Convention,  July  20,  he  was  op- 

60 


THE  POSITION  TAKEN  BY  MADISON 

posed  to  any  impeachability  of  the  Executive 
Magistrate :  In  Art :  III.,  it  is  required  that  all 
money-bills  shall  originate  in  the  first  Branch 
of  the  Legislature;  which  he  strenuously  op- 
posed Aug:  8,  and  again,  Aug:  11:  In  Art:  V., 
members  of  each  House  are  made  ineligible  to, 
as  well  as  incapable  of  holding,  any  office  un- 
der the  Union,  etc.,  as  was  the  case  at  one 
Stage  of  the  Constitution;  a  disqualification 
highly  disapproved  and  opposed  by  him 
Aug:  14. 

"A  still  more  conclusive  evidence  of  errour 
in  the  paper  is  seen  in  Art:  III.,  which  pro- 
vides, as  the  Constitution  does,  that  the  first 
Branch  of  the  Legislature  shall  be  chosen  by 
the  people  of  the  several  States ;  whilst  it  ap- 
pears, that  on  the  6th  of  June,  according  to 
previous  notice,  too,  a  few  days  only,  after  the 
Draft  was  laid  before  the  Convention,  its  Au- 
thor opposed  that  mode  of  choice,  urging  & 
proposing,  in  place  of  it,  an  election  by  the 
Legislatures  of  the  several  States. 

"The  remarks  here  made,  tho'  not  ma- 
terial in  themselves,  were  due  to  the  authen- 
ticity and  accuracy  aimed  at,  in  this  Eecord  of 
the  proceedings  of  a  Publick  Body,  so  much 

61 


THE  PINCKNEY  DRAUGHT 

an  object,  sometimes,  of  curious  research,  as 
at  all  times,  of  profound  interest. ' ' 

"As  an  Editorial  note  to  the  paper  in  the 
hand  writing  of  Mr.  M.  beginning  'The 
length,  &c.'  " 

"* Striking  discrepancies  will  be  found  on  a 
comparison  of  his  plan,  as  furnished  to  Mr. 
Adams,  and  the  view  given  of  that  which  was 
laid  before  the  Convention,  in  a  pamphlet  pub- 
lished by  Francis  Childs  at  New  York  shortly 
after  the  close  of  the  Convention.  The  title 
of  the  pamphlet  is  '  Observations  on  the  plan 
of  Government  submitted  to  the  Federal  Con- 
vention on  the  28th  of  May,  1787,  by  Charles 
Pinckney,  &c.' 

"But  what  conclusively  proves  that  the 
choice  of  the  H.  of  Eeps.  Toy  the  people  could 
not  have  been  the  choice-  in  the  lost  paper  is  a 
letter  from  Mr.  Pinkney  to  J.  M.  of  March 
28, 1789,  now  on  his  files,  in  which  he  emphat- 
ically adheres  to  a  choice  by  the  State  Legrs. 
The  following  is  an  extract — 'Are  you  not, 
to  use  a  full  expression,  abundantly  convinced 
that  the  theoretical  nonsense  of  an  election 
of  the  members  of  Congress  by  the  people  in 

62 


THE  POSITION  TAKEN  BY  MADISON 

the  first  instance,  is  clearly  and  practically 
wrong — that  it  will  in  the  end  be  the  means  of 
bringing  our  Councils  into  contempt  and  that 
the  Legislatures  (of  the  States)  are  the  only 
proper  judges  of  who  ought  to  be  elected?'  " 

It  is  plain  that  Madison  intended  that  the 
last  two  paragraphs  of  the  foregoing,  begin- 
ning with  an  asterisk,  should  take  the  form  of 
an  editorial  note,  and  he  so  prepared  the  paper 
even  to  the  placing  of  the  asterisk  at  the  begin- 
ning. As  long  before  this  as  1821  he  had  de- 
termined in  his  own  mind  that  the  publication 
of  the  Journal  should  be  as  he  termed  it,  "a 
posthumous  one"  (letter  to  Thomas  Eitchie 
September  15,  1821),  and  he  carried  out  the 
intention  by  so  providing  in  his  will  made  in 
1835.  The  expected  editor  was  Mrs.  Madison ; 
and  she,  he  knew,  would  scrupulously  and  in- 
telligently carry  into  effect  his  slightest  wish. 
She  was  not  able  to  perform  the1  editorial 
task. 

When  these  charges  of  Madison  are  an- 
alyzed they  may  be  reduced  to  three.  The 
first  and  most  serious  charge  is  that  there  are 
coincidences  "in  several  instances "  between 

63 


THE  PINCKNEY  DRAUGHT 

the  draught  and  the  Constitution — "a  similar- 
ity in  some  cases  and  an  identity  in  others 
with  details,  expressions  and  definitions'* 
which  were  "the  results  of  critical  discussion 
and  modification  in  the  Convention."  The 
second  is  that  there  are  provisions  in  the 
draught  inconsistent  with  Pinckney's  known 
views,  with  the  propositions  which  he  pre- 
sented and  the  speeches  which  he  made  in  the 
Convention  and  that  these  provisions  are  so 
inconsistent  with  his  views  and  speeches  that 
they  are  i  '  conclusive  evidence  of  error ' '  in  the 
draught.  The  third,  is  that  Pinckney  imme- 
diately after  the  sittings  of  the  Convention 
printed  and  published  a  paper  entitled  "Ob- 
servations" which  described  the  contents  of 
the  draught  which  he  had  presented  to  the 
Convention  and  that  the  two  are  utterly  ir- 
reconcilable. 


64 


CHAPTER  VII 

THE  PLAGIARISMS 

NOTWITHSTANDING  Madison's  igno- 
rance of  the  contents  of  the  draught,  and 
the  fallacy  of  the  inference  which  he  drew 
from  the  fact  that  Pinckney  did  not  adhere  to 
all  the  provisions  of  a  tentative  scheme,  there 
remains  an  objection  of  the  gravest  charac- 
ter, susceptible  of  proof  or  disproof  which 
must  rest  on  facts  and  not  be  deduced  by  in- 
ferences. The  objection  that  Pinckney  framed 
a  provision  at  one  time  and  disapproved  of  it 
at  another  is  easily  superable:  the  objection 
that  "there  is  in  the  paper  a  similarity  in  some 
cases  and  an  identity  in  others  with  details, 
expressions  and  definitions,  the  results  of  crit- 
ical discussion  and  modification  in  the  Con- 
vention which  could  not  have  been  antici- 
pated/' is  insuperable — if  it  be  well  founded. 
That  is  to  say  if  there  are  "details,  expres- 
sions and  definitions"  in  the  State  Depart- 
ment copy  of  the  draught  which  were  ' '  the  re- 

65 


THE  PINCKNEY  DRAUGHT 

suits  of  critical  discussion  and  modification 
in  the  Convention  which  could  not  have  been 
anticipated/'  then  the  presumption  must  be 
well  nigh  irrefutable  that  these  "details,  ex- 
pressions and  definitions"  in  the  questionable 
instrument  were  taken  from  the  Constitution ; 
and  in  the  absence  of  extraordinary  explana- 
tion, we  shall  be  compelled  to  agree  with  Madi- 
son that  the  evidence  is  "irresistible" — unless 
indeed  it  should  appear  that  the  expressions 
and  definitions  which  at  first  sight  appear  to 
have  been  begun  and  created  in  the  Conven- 
tion had  previously  existed  in  the  Articles  of 
Confederation  or  in  a  State  Constitution,  or  in 
the  resolutions  of  the  Continental  Congress 
or  in  some  source  open  to  all  parties. 

To  a  right  understanding  of  the  circum- 
stances and  conditions  of  the  subject  of  in- 
vestigation, we  must  bear  in  mind,  when  we 
begin  the  inquiry  whether  there  are  "details, 
expressions  and  definitions"  in  the  Pinckney 
draught  which  were  "the  results  of  critical 
discussion  and  modification  in  the  Conven- 
tion," that  the  Constitution  passed  through 
four  germinal  stages : 

The  first  began  with  Bandolph's  15  reso- 
66 


THE  PLAGIARISMS 

lutions,  on  the  29th  of  May,  and  ended  on  the 
26th  of  July  with  the  23  resolutions  of  the 
Convention.  The  15  resolutions  had  been  con- 
sidered and  discussed  and  modified  and  ex- 
panded into  the  19  resolutions  of  the  Commit- 
tee of  the  Whole,  June  13th ;  and  the  19  resolu- 
tions had  also  been  considered  and  discussed 
and  modified  and  enlarged  into  the  23  resolu- 
tions of  the  Convention,  July  26th.  Never  in 
the  history  of  nations  did  a  deliberative  public 
body  strive  so  philosophically,  so  wisely  and 
well  to  possess  itself  of  the  subjects  to  be  con- 
sidered— to  comprehend  its  task — to  know 
what  it  was  doing  and  to  do. 

"At  the  beginning,  propositions  for  consid- 
eration and  discussion  were  tentatively  placed 
before  the  Convention  in  an  abstract  form. 
These  propositions  were  embodied  in  15  reso- 
lutions, which  were  immediately  referred  to 
the  Committee  of  the  Whole.  They  were 
taken  up  one  by  one,  and  considered  and  dis- 
cussed and  amended  or  rejected  or  adopted 
or  postponed  for  later  consideration.  The 
abstract  of  a  part  of  a  single  day's  proceed- 
ings will  give  a  clear  idea  of  the  way  in  which 
the  Convention  worked : 

67 


THE  PINCKNEY  DRAUGHT 

1  Tuesday,  June  5.  Mr.  Randolph's  ninth 
proposition — The  national  judiciary  to  be 
chosen  by  the  national  legislature — Disagreed 
to — To  hold  office  during  good  behavior  and 
to  receive  a  fixed  compensation — Agreed  to 
To  have  jurisdiction  over  offenses  at  sea,  cap- 
tures, cases  of  foreigners  and  citizens  of  dif- 
ferent States,  of  national  revenue,  impeach- 
ment of  national  officers,  and  questions  of 
national  peace  and  harmony — Postponed. 

"At  the  end  of  two  weeks  of  such  consid- 
eration and  discussion,  June  13,  the  Committee 
of  the  Whole  reported  the  conclusions  which 
had  so  far  been  reached  in  the  form  of  19  res- 
olutions. But  everything  was  still  abstract 
and  tentative.  No  line  of  the  Constitution 
had  yet  been  written;  no  provision  had  yet 
been  agreed  upon.  The  19  resolutions  in  like 
manner  were  taken  up,  one  by  one,  and  in 
like  manner  considered  and  discussed,  and 
amended  or  rejected  or  adopted  or  postponed. 
Other  propositions  coming  from  other  sources 
were  also  considered ;  and  so  the  work  went  on 
until  July  26,  when  the  conclusions  of  the  Con- 
vention were  referred  to  the  Committee  of 

68 


THE  PLAGIARISMS 

Detail,  and  the  work  of  reducing  the  abstract 
to  the  concrete  began.  The  Convention  then 
adjourned  to  August  6,  to  enable  the  commit- 
tee to  *  prepare  and  report  the  Constitution.' 

"  On  August  6,  the  Committee  of  Detail  re- 
ported and  furnished  every  member  with  a 
printed  copy  of  the  proposed  Constitution. 
Again  the  work  of  consideration  began,  and 
went  on  as  before,  section  by  section,  line  by 
line.  Vexed  questions  were  referred  to  com- 
mittees representing  every  State, — "  grand 
committees"  they  were  called, — "amendments 
were  offered,  changes  were  made,  the  Com- 
mittee of  Detail  incorporated  new  and  addi- 
tional matters  in  their  draught,  until,  on  Sep- 
tember 8,  the  work  of  construction  stopped. 
But  not  even  then  did  the  labors  of  the  Con- 
vention cease.  On  that  day  a  committee  was 
appointed,  "by  ballot,  to  revise  the  style  of, 
and  arrange,  the  articles  which  had  been 
agreed  to. "  This  committee  was  afterward 
known  as  the  Committee  of  Style.  It  re- 
ported on  the  12th  of  September,  and  the  work 
of  revision  again  went  on  until  Saturday,  the 
15th.  On  Monday,  the  17th,  the  end  was 
reached,  and  the  members  of  the  Convention 

69 


THE  PINCKNEY  DRAUGHT 

signed  the  Constitution.  Well  might  Frank- 
lin exclaim  in  his  farewell  words  to  the  Con- 
vention: 'It  astonishes  me,  sir,  to  find  the 
system  approaching  so  near  to  perfection  as 
it  does!'  He  had  been  overruled  more  than 
once  in  the  Convention;  provisions  which  he 
had  proposed  had  been  rejected;  provisions 
which  he  had  opposed  had  been  retained;  but 
he  was  a  great  man  and  saw  that  a  great  work 
had  been  accomplished."  The  Immutability 
of  the  Constitution.  Encyclopaedia  Ameri- 
cana. 

The  second  germinal  stage  began  July  26th 
with  the  appointment  of  a  committee — the 
Committee  of  Detail  "for  the  purpose  of  re- 
porting a  Constitution,"  and  continued  until 
August  6th  when  "Mr.  Eutledge  delivered  in 
the  report  of  the  Committee  of  Detail — a 
printed  copy  being  at  the  same  time  furnished 
to  each  member." 

The  Committee  had  retired  from  the  Con- 
vention with  instructions  couched  in  the  23 
resolutions,  and  they  returned  to  it  with  more 
than  half  of  the  Constitution,  arranged  in  the 
form  of  articles  and  sections  substantially  as 

70 


THE  PLAGIARISMS 

we  have  them  in  the  Constitution.  The  num- 
ber of  provisions  contained  in  the  draught 
greatly  exceeded  the  number  of  specific  in- 
structions set  forth  in  the  resolutions,  but 
the  excess  was  not  wholly  an  excess  of  au- 
thority for  it  had  been  resolved  : 

' '  That  the  national  legislature  ought  to  pos- 
sess the  legislative  rights  vested  in  Congress 
by  the  Confederation:  and  moreover  to  leg- 
islate in  all  the  cases  for  the  general  inter- 
ests of  the  Union,  and  also  in  those  to  which 
the  States  are  separately  incompetent  or  in 
which  the  harmony  of  the  United  States  may 
be  interrupted  by  the  exercise  of  individual 
legislation. ' ' 

When  the  paper  which  Eutledge  held  in  his 
hand,  as  he  rose  to  address  the  Convention 
on  the  6th  of  August,  was  placed  on  the  table 
before  Washington,  the  moment  witnessed  the 
birth  of  the  Constitution.  Provisions  which 
it  contained  were  to  be  stricken  out,  and  some 
of  the  great  compromises  were  yet  to  be  forged 
and  inscribed  upon  the  scroll,  but  the  written 
Constitution  was  now  in  being.  And  yet  this 
is  but  figurative  language.  The  great  state 
paper  which  passed  from  the  hand  of  Eut- 

71 


THE  PINCKNEY  DEAUGHT 

ledge  to  the  hand  of  Washington  was  not  en- 
grossed on  parchment,  like  a  second  Magna 
Charta;  it  was  not  attested  by  signature  or 
date ;  it  was  not  even  in  writing ;  a  few  pages 
of  printer's  paper,  plain  and  unpretentious; 
a  mere  copy,  one  of  a  number  of  printed 
copies,  as  we  gather  from  the  record.  But 
it  was  to  receive  the  severest  scrutiny  of  some 
of  the  great  men  of  the  world,  of  Washington, 
Franklin,  Madison,  Ellsworth,  Wilson,  Eut- 
ledge,  Hamilton. 

The  printed  document  found  in  the  box 
which  holds  the  few  records  of  the  Convention 
is  not  unworthy  of  a  great  state  paper.  It 
is  on  stately,  heavy,  hand-made  paper,  10  by 
15%  inches  in  size.  The  printed  matter  is 
514  inches  by  12%.  There  are  seven  pages 
carrying  from  27  to  53  lines  on  each.  The 
workmanship  is  faultless;  the  type  clear,  the 
impression  uniform,  the  ink  unfaded,  the  punc- 
tuation careful,  the  spacing  perfect.  There 
are  but  two  typographical  errors,  one  of  which 
is  a  misnumbering  of  the  articles.  In  Pinck- 
ney's  draught  the  first  article  has  inscribed 
over  it  "Article  1"  and  the  following  articles 
have  only  their  numbers  2,  3,  etc.  The  prin- 

72 


THE  PLAGIAEISMS 

ter  followed  the  same  form,  the  only  difference 
being  that  Pinckney,  writing  the  draught  with 
his  own  hand,  used  arabic  figures,  for  which 
the  printer  substituted  Eoman  numerals. 
When  he  reached  the  seventh  article  he  re- 
peated VI.  and  when  he  reached  the  eighth  he 
entitled  it  VII.  and  continued  the  error 
through  the  remaining  articles.  Notwith- 
standing this  blemish  I  have  never  seen  so 
faultless  a  public  document. 
The  copy  bears  this  endorsement: 

"Printed  Draught  of  the  Constitution, 
received  from  the  President  of  the  United 
States,  March  19th,  1796  by 

"TIMOTHY  PICKERING 

"Sec'y  of  State" 

The  name  of  the  printer  who  did  his  confi- 
dential work  so  well,  I  regret  to  say,  is  not 
upon  the  paper. 

It  has  been  supposed  and  said  that  this 
copy  of  the  draught  was  Jackson's,  the  inef- 
ficient Secretary  of  the  Convention,  and  that 
he  used  it  to  save  himself  the  trouble  of  writ- 
ing out  the  proceedings  in  the  journal  by  not- 

73 


THE  PINCKNEY  DRAUGHT 

ing  amendments  on  the  margin.  This  like 
much  other  imaginary  history  is  erroneous. 

When  I  first  saw  the  draught  of  the  commit- 
tee, I  observed  that  the  notes  on  the  margin 
were  written  in  two  different  hands.  I  also 
observed  that  one  of  these  though  not  familiar 
was  a  hand  which  I  had  seen  before.  On  call- 
ing the  attention  of  Mr.  S.  B.  Crandall  of  the 
Bureau  of  Eolls  to  it,  he  instantly  recognized 
this  writing  as  Washington's.  A  further  ex- 
amination showed  that  115  notes  and  inter- 
lineations were  written  by  Washington  and  7 
by  Jackson.  This  copy  of  the  draught  was 
Washington's  own  copy! 

Whether  he  placed  the  copy  among  the  pa- 
pers of  the  Convention  on  September  17,  1787 
when  the  Secretary  brought  them  to  him;  or 
whether  he  transferred  his  own  copy  to  the 
Secretary  of  State  in  1796  is  unknown  and 
probably  unascertainable,  but  the  indorsement 
makes  it  certain  that  the  paper  came  to  the 
Department  directly  from  Washington;  and 
the  115  carefully  made  emendations  in  his 
handwriting  are  for  us  the  highest  evidence 
in  the  world  of  its  authenticity. 

The  notes  by  Jackson  are  easily  explicable; 
74 


THE  PLAGIARISMS 

they  are  lengthy  amendments  which  Wash- 
ington could  not  take  down  from  hearing  them 
read;  and  he  handed  his  printed  copy  to  the 
Secretary  to  have  them  correctly  and  fully 
written  out.1 

If  the  Committee  of  Detail — Butledge  of 
South  Carolina,  Eandolph  of  Virginia,  Gor- 
ham  of  Massachusetts,  Ellsworth  of  Connec- 
ticut and  Wilson  of  Pennsylvania- — intended 
to  keep  their  work  a  profound  secret,  and  the 
secret  to  be  buried  with  themselves,  they  could 
not  have  planned  better  than  they  did.  The 
work  was  done  in  secret;  they  employed  no 
secretary;  their  report  was  not  in  writing. 
After  the  committee  was  discharged  no  hint 
or  word  seems  to  have  escaped  them.  No 
man  boasted  of  his  own  part  or  disparaged 
another's.  There  is  no  journal  which  tells 
us  how  they  worked.  No  son  or  daughter 
or  grandchild  has  revealed  a  word  that  any 
member  subsequently  said.  In  1813  when  Ed- 

i  For  the  benefit  of  those  persons  who  are  so  fortunate 
as  to  have  a  copy  of  the  Documentary  History  of  the  Con- 
stitution (Department  of  State,  1894)  I  will  add  that  the 
marginal  notes  which  are  in  the  writing  of  Jackson  are  those 
of  Art.  V,  Sec.  1;  Art.  VI,  Sec.  3;  Sec.  13,  Art.  VII;  Sec. 
1,  Art.  XI;  Sec.  4,  Art.  XV;  (see  Doc.  Hist.,  Constitution 
Vol.  I,  p.  285). 

75 


THE  PINCKNEY  DRAUGHT 

mund  Randolph  died,  the  secret  of  the  mem- 
bers of  the  Committee  of  Detail  died  with 
him. 

The  third  germinal  stage  was  based  on  the 
draught  of  the  Committee  of  Detail  and  ex- 
tended from  the  6th  of  August  to  the  12th  of 
September.  The  draught  of  the  Committee 
constituted  the  divide  in  the  march  of  the 
framers.  Behind  them  was  the  plain  of  phil- 
osophical disquisition  on  which  there  had  been 
many  contests,  but  exclusively  as  to  what 
might  be  and  might  not  be.  Before  them  were 
many  hills  of  difficulty  to  be  surmounted  in 
the  practical  application  of  abstract  propo- 
sitions by  incorporating  them  in  provisions 
and  conditions  to  be  written  into  the  Consti- 
tution. But  the  work  of  the  Convention  and 
the  debates  of  the  members  were  in  connec- 
tion with  the  draughted  Constitution  of  the 
Committee  of  Detail,  or  in  connection  with 
amendments  thereof  or  additions  thereto. 
There  were  indeed  new  provisions  framed 
sometimes  by  grand  committees,  sometimes 
by  special  committees,  sometimes  by  the 
Convention  itself  —  provisions  concerning 
which  the  Convention  had  not  at  first  suffi- 

76 


THE  PLAGIABISMS 

ciently  instructed  the  Committee  of  Detail — 
provisions  which  the  Convention  had  not  then 
considered  and  determined  even  in  the  form  of 
abstract  propositions.  The  most  difficult  of 
the  compromises,  that  between  the  large  and 
the  small  States  in  the  choosing  of  the  Presi- 
dent, was  effected;  and  the  method  first  pro- 
posed by  Wilson  and  rejected  by  the  Conven- 
tion, June  2nd,  that  the  choice  should  be  made 
through  the  agency  of  electoral  colleges 
was  reconsidered  and  adopted.  The  power 
to  try  officers  impeached  by  the  House  of 
Eepresentatives  was  taken  from  the  Supreme 
Court  and  given  to  the  Senate;  the  power  to 
appoint  ambassadors,  and  judges  of  the  Su- 
preme Court,  was  taken  from  the  Senate  and 
given  to  the  President;  the  power  to  appoint 
the  Treasurer  of  the  United  States  was  taken 
from  the  Legislative  branch  and  given  to  the 
Executive;  and  the  important  treaty-making 
power  which  at  first  was  lodged  exclusively 
in  the  Senate  was  transferred  to  the  Executive 
subject  to  the  ratification  of  the  Senate.  But 
all  that  was  considered  and  agreed  upon  was 
attached  to  the  draught  of  the  Committee  of 
Detail. 

77 


THE  PINCKNEY  DBAUGHT 

The  fourth  stage  began  on  the  12th  of  Sep- 
tember with  the  revised  Constitution  reported 
by  the  Committee  appointed  "to  revise  the 
style  of  and  arrange  the  articles"  which  had 
been  agreed  upon,  commonly  termed  the 
"Committee  of  Style/'  but  which  more  cor- 
rectly might  have  been  termed  the  Commit- 
tee of  Eevision.  During  that  and  the  next 
three  days  the  Constitution  was  modified  by  a 
number  of  amendments  chiefly  of  the  nature 
of  corrections.  The  Committee  of  Style  made 
no  changes  other  than  those  of  arrangement 
and  language.  The  correction  of  the  language 
of  the  Constitution  was  masterly  and  is 
ascribed  by  Madison  to  Gouverneur  Morris. 
On  Saturday  the  15th  of  September  the  labors 
of  the  Convention  ended.  On  Monday  the 
17th,  the  engrossed  Constitution  was  signed. 

In  his  "Note  to  the  Plan,"  Madison  speci- 
fies some  of  the  "details,  expressions  and  defi- 
nitions'' which  were  framed  in  the  Conven- 
tion, the  "results  of  critical  discussions" 
that  "could  not  have  been  anticipated"  by 
Pinckney.  "Examples"  of  these  "similari- 
ties" and  "identities"  he  says,  "may  be  no- 
ticed in  article  VIII,  which  is  remarkable  also 

78 


OF   THE 

UNIVERSITY    ] 


\  °f 

^^g^UFQR 


"THE  PLAGIARISMS 

for  the  circumstance  that  whilst  it  specifies 
the  functions  of  the  President,  no  provision  is 
contained  in  the  paper  for  the  election  of  such 
an  officer.  '  '  These  are  all  the  specifications  of 
provisions  or  of  language  plagiarised  from  the 
Constitution  by  Pinckney  which  Madison  has 
filed.  Specifying  nothing  else,  we  may  as- 
sume that  the  plagiarisms  contained  in  article 
VIII.  were  the  plagiarisms  which  dwelt  in  his 
own  mind  and  upon  which  he  rested  his  con- 
clusions. 

These  specific  charges  of  plagiarism  may  be 
struck  down  by  a  single  blow:  —  • 

Not  one  of  the  provisions  contained  in 
Pinckney'  's  article  VIII  was  framed  in  the 
Convention,  and  all  were  brought  before 
the  Convention  by  the  draught  of  the  Com- 
mittee of  Detail.  All  the  provisions  of  the 
Constitution  which  ivere  framed  by  the  Con- 
vention were  framed  subsequently  to  the  6th 
of  August  and  belong  to  the  3d  and  4th  ger- 
minal periods.  All  the  provisions  ivhich  are 
contained  in  the  draught  of  the  Committee  of 
Detail  were  framed  before  the  6th  of  August 
and  existed  before  the  constructive  work  of 
the  Convention  began. 

79 


THE  PINCKNEY  DRAUGHT 

When  the  sequence  of  events  is  observed 
the  matter  is  cleared  and  the  "phenomenon" 
of  Madison  becomes  a  simple  link  in  the  chain 
of  events.  Pinckney  presented  his  draught  to 
the  Convention  on  its  first  business  day  be- 
fore there  had  been  a  single  "critical  discus- 
sion." The  Convention  immediately  referred 
the  draught  to  the  Committee  of  the  Whole, 
which  made  it  accessible  to  every  member  of 
the  Convention.  When  a  committee  was  ap- 
pointed to  draught  a  Constitution,  the  draught 
of  Pinckney  was  taken  from  the  Committee  of 
the  Whole  and  referred  to  the  Committee  of 
Detail.  The  committee  found  in  the  draught 
matter  which  they  needed  and  they  used  it  as 
the  basis  of  their  own  draught  as  any  commit- 
tee would  have  done.  And  thus  the  draught 
of  the  Committee  of  Detail  became  the  vehicle 
by  means  of  which  these  provisions  and  ex- 
pressions of  Pinckney  were  carried  into  the 
Constitution. 

If  all  this  were  not  a  matter  of  record  it 
would  be  well  nigh  unbelievable  that  Madison 
of  all  men  could  have  pursued  the  course  he 
did.  The  most  diligent  member  of  the  Con- 
vention, the  chronicler  of  its  transactions,  the 

80 


THE  PLAGIAEISMS 

sole  survivor  of  its  members  and,  consequent- 
ly, a  witness  who  should  speak  with  the  great- 
est care ;  and  yet  we  find  him,  at  one  end  of  the 
line,  ignorant  of  the  contents  of  Pinckney's 
draught,  and  at  the  other  silent  as  to  the  con- 
tents and  existence  of  the  draught  of  the  Com- 
mittee of  Detail.  When  he  wrote  of  "the  co- 
incidence in  several  instances  between  that 
[the  State  Department  draught]  and  the  Con- 
stitution as  adopted"  and  cited  article  VIII 
as  containing  remarkable  examples  of  these 
coincidences,  he  gave  unconsciously  a  curious 
illustration  of  things  ' '  confounded  in  the  mem- 
ory "  "after  a  lapse  of  more  than  thirty 
years" — in  his  case,  after  a  lapse  of  more  than 
forty-five  years. 

With  the  fall  of  these  specifications  falls  the 
general  charge  of  plagiarism.  The  draught  in 
the  State  Department  ends  with  the  draught 
of  the  Committee  of  Detail;  whatever  coinci- 
dences there  be  of  "details,  expressions  and 
definitions "  are  coincidences  in  the  two 
draughts  and  in  them  alone.  The  similarities 
and  identities  which  so  impressed  Madison 
were  merely  similarities  and  identities  between 
the  two  draughts.  He  doubtless  selected  arti- 

81 


THE  PINCKNEY  DBAUGHT 

cle  VIII  as  "  remarkable "  because  he  recog- 
nized in  it  provisions  and  expressions  which 
he  knew  were  in  the  Constitution.  But  there 
are  others  in  article  VIII  which  are  not  in  the 
Constitution  and  which  are  inconsistent  with  it. 
The  retention  of  these  is  sufficient  to  refute  the 
idea  that  Pinckney  changed  his  draught  to 
make  it  conform  to  the  work  of  the  Conven- 
tion. Article  VIII  provides  that  the  title  of 
the  President  " shall  be  his  Excellency." 
There  is  no  such  provision  in  the  Constitution. 
Article  VIII  makes  exceptions  to  the  appoint- 
ing power;  "ambassadors,  other  ministers  and 
judges  of  the  Supreme  Court"  are  not  to  be 
appointed  by  the  President  but  by  the  Senate. 
This  was  not  one  of  the  "results"  arrived  at 
in  the  Convention.  In  case  of  the  death  of  the 
President  and  the  death  of  the  President  of 
the  Senate,  "the  Speaker  of  the  House  of  Dele- 
gates shall  exercise  the  duties  of  the  office." 
Here  all  that  Pinckney  had  to  do  to  make  his 
draught  conform  was  to  run  his  pen  through 
the  supplementary  clause  vesting  the  succes- 
sion in  the  Speaker.  The  President  may  be 
removed  from  office  on  impeachment  by  the 
House  of  Delegates  and  "conviction  in  the 

82 


THE  PLAGIAEISMS 

Supreme  Court. ' '  Here  all  that  Pinckney  had 
to  do  was  to  erase  "Supreme  Court"  and  in- 
sert "Senate."  Finally  it  is  to  be  noted  that 
those  expressions  and  provisions  in  article 
VIII  which  caught  the  eye  of  Madison  and 
were  characterized  as  "remarkable"  were  not 
"results  of  critical  discussion  and  modifica- 
tion in  the  Convention  that  could  not  have 
been  anticipated, ' '  but  were  provisions  and  ex- 
pressions which  had  been  taken  by  Pinckney 
from  the  constitutions  of  New  York  and  Mas- 
sachusetts, generally  word  for  word.  The  ar- 
ticle provides  that  the  President  "shall  from 
time  to  time  give  information  to  the  legislature 
of  the  state  of  the  Union,"  and  "recommend 
to  their  consideration"  the  measures  he  may 
think  necessary;  that  "he  shall  take  care  that 
the  laws  be  duly  executed";  that  "he  shall 
commission  all  officers";  and  "shall  nominate 
and  with  the  consent  of  the  Senate"  appoint 
officers;  that  "he  shall  have  power  to  grant 
pardons  and  reprieves";  and  that  "he  shall  be 
commander  in  chief  of  the  army  and  navy"; 
but  each  of  these  provisions  was  taken  from 
the  constitution  of  New  York.  The  article 
also  provides  that  at  "entering  on  the  duties 

83 


THE  PINCKNEY  DBAUGHT 

of  his  office  he  shall  take  an  oath  faithfully  to 
execute  the  duties "  of  President;  and  that  he 
"  shall  be  removed  from  his  office  on  impeach- 
ment by  the  House  of  Delegates ";  but  these 
provisions  were  taken  from  the  constitution 
of  Massachusetts.  The  article  also  provides 
that  "in  case  of  his  removal  by  death,  resig- 
nation or  disability,  the  President  of  the  Sen- 
ate shall  exercise  the  duties  of  his  office ' ' ;  but 
this  is  taken  from  the  constitution  of  New 
York.  In  a  word  when  we  trace  these  provi- 
sions and  expressions  to  their  respective 
sources  there  is  nothing  left  of  the  article. 
Article  VIII  is  indeed  remarkable ;  but  it  is  for 
reversing  the  deductions  of  Madison ;  for  dem- 
onstrating with  mathematical  certainty  (so 
far  as  it  goes),  that  Pinckney  did  not  make 
his  draught  conform  to  "results"  which  had 
been  reached  in  the  Convention,  and  which 
"could  not  have  been  anticipated." 


84 


CHAPTER  VIII. 

THE   IMPROBABILITIES. 

FT1HE  most  incisive  reason  given  by  Mad- 
I  ison  against  the  authenticity  of  the 
draught  in  the  Department  of  State,  the  reason 
which  he  most  reiterated,  if  not  the  one  upon 
which  he  most  relied,  was  that  the  draught 
was  presented  to  the  Convention  on  the  29th 
May  and  a  week  later,  June  6th,  Pinck- 
ney  moved  "that  the  first  branch  of  the  na- 
tional legislature  be  elected  by  the  State  legis- 
latures and  not  by  the  people."  This  objec- 
tion is  not  only  plausible  but  it  rests  on  two 
incontrovertible  facts  each  of  which  is  a  mat- 
ter of  record — that  the  draught  was  presented 
to  the  Convention  on  the  29th  of  May ;  that  his 
inconsistent  motion  was  made  on  the  6th  of 
June.  But  the  conclusiveness  of  these  facts 
disappears  when  the  circumstances  and 
changed  conditions  of  the  case  appear. 

In  the  first  place  Pinckney  had  forestalled 
the  point  made  by  Madison  by  declaring  in 

85 


THE  PINCKNEY  DRAUGHT 

his  letter  to  the  Secretary  of  State  that  there 
were  provisions  in  the  draught  which  on  fur- 
ther reflection  he  had  opposed  in  the  Conven- 
tion. This  declaration,  it  must  be  remember- 
ed, was  made  before  the  publication  of  Madi- 
son's Journal,  before  it  was  known  that  it 
would  be  published,  before  Pinckney  knew  or 
could  have  known  what  the  Journal  would 
show.  In  other  words  it  was  he  himself  who 
first  revealed  his  own  inconsistency  in  having 
presented  a  plan  for  one  thing  in  May  and 
in  having  contended  for  another  thing  in  June. 
The  explanation  is  not  an  after-thought  or  a 
defence,  but  an  avowal  made  in  due  time. 

In  the  second  place  the  draught  was  present- 
ed on  the  29th  of  May,  but  it  was  not  written 
then.  It  must  have  been  written  weeks  before 
this  in  Pinckney 's  study  in  Charleston.  When 
he  wrote  it  he  had  before  him,  as  every 
American  of  that  day  had,  the  Constitution  of 
Great  Britain,  the  constitution  under  which  he 
had  grown  up,  the  merits  and  virtues  and  wis- 
dom and  excellencies  of  which  he  had  read  and 
re-read  in  Blackstone.  It  was  a  matter  of 
course  for  him,  when  dealing  with  the  legisla- 
tive power,  to  have  his  Congress  consist  of  two 

86 


THE  IMPROBABILITIES 

houses.  As  to  this  there  would  not  be  a  doubt 
or  a  thought.  The  next  thing  would  be  to  have 
the  members  of  the  first  house,  like  the  mem- 
bers of  the  House  of  Commons,  elected  by  the 
people.  So  far  he  had  no  reason  to  pause  and 
reflect.  But  when  he  came  to  the  second 
house,  he  had  no  nobility  at  hand  of  which  it 
might  be  composed.  Here  his  invention  be- 
gan, and  he  avowedly  so  contrived  his  Senate 
that  it  should  in  fact  though  not  in  form,  rep- 
resent not  nobility  but  wealth.  It  is  probable 
that  when  he  was  draughting  his  constitution, 
it  never  entered  his  head  that  the  lower  house 
of  the  American  parliament  could  be  chosen 
by  any  other  means  than  the  means  by  which 
the  House  of  Commons  was  chosen  and  the 
lower  house  of  every  American  State. 

In  the  third  place  between  the  29th  of  May 
and  the  6th  of  June  the  subject  had  come  be- 
fore the  Convention  and  had  been  discussed 
and  South  Carolina  had  taken  a  position 
against  it. 

Gerry  of  Massachusetts  said  that  "the  evils 
we  experience  flow  from  the  excess  of  democ- 
racy ";  and  that  "he  did  not  like  the  election 
by  the  people."  Butler,  of  South  Carolina, 

87 


THE  PINCKNEY  DKAUGHT 

' '  thought  an  election  by  the  people  an  imprac- 
ticable mode. ' '  Butledge,  the  strongest  man  in 
the  State,  seconded  the  motion  to  have  the 
first  branch  elected  by  the  State  legislatures. 
Charles  Cotesworth  Pinckney,  the  most  es- 
teemed citizen  of  the  State  and  Pinckney 's 
kinsman,  brought  South  Carolina  before  the 
Convention  as  an  illustration  and  even  went 
so  far  as  to  say  "an  election  of  either  branch 
by  the  people,  scattered  as  they  are  in  many 
States,  particularly  in  South  Carolina,  is  total- 
ly impracticable. " 

Pinckney  was  the  youngest  member  of  the 
delegation — much  the  youngest.  He  was  not 
yet  30 ;  and,  with  the  exception  of  Dayton  and 
Mercer  was  the  youngest  member  of  the  Con- 
vention. It  would  have  been  natural  for  him 
as  a  Southerner  "to  go  with  his  State" — and 
as  a  young  man  to  defer  to  his  seniors.  And 
after  hearing  the  debate  on  the  31st  of  May 
and  the  reasons  of  his  fellow  delegates  from 
South  Carolina,  it  was  proper  for  him  to 
change  his  mind  and  advocate  election  by  the 
State  legislatures  as  a  better  mode.  It  would 
have  been  a  matter  of  wonder  if  he  had 
not! 


THE  IMPROBABILITIES 

But  there  is  a  letter  of  George  Eead  which 
should  be  considered,  for  it  suggests  the  ques- 
tion whether  this  change  of  Pinckney  did  not 
take  place  before  the  29th  of  May;  that  is  to 
say  before  he  presented  his  draught  to  the 
Convention. 

On  the  20th  of  May  1787  Mr.  Eead  wrote 
from  Philadelphia  to  John  Dickinson: 

"I  am  in  possession  of  a  copied  draught  of 
a  federal  system  intended  to  be  proposed  if 
something  nearly  similar  shall  not  precede  it. 
Some  of  its  principal  features  are  taken  from 
the  New  York  system  of  government.  A  house 
of  delegates  and  senate  for  a  general  legisla- 
ture, as  to  the  great  business  of  the  Union. 
The  first  of  them  to  be  chosen  by  the  legislature 
of  each  State,  in  proportion  to  its  number  of 
white  inhabitants,  and  three-fifths  of  all  oth- 
ers, fixing  a  number  for  sending  each  repre- 
sentative. The  second,  to-wit  the  senate,  to 
be  elected  by  the  delegates  so  returned,  either 
from  themselves  or  the  people  at  large,  in  four 
great  districts,  into  which  the  United  States 
are  to  be  divided  for  the  purpose  of  forming 
this  senate  from  which,  when  so  formed,  is  to 
be  divided  into  four  classes  for  the  purpose  of 

89 


THE  PINCKNEY  DEAUGHT 

an  annual  rotation  of  a  fourth  of  the  members. 
A  president  having  only  executive  powers  for 
seven  years. "  (Bead's  Life  of  George  Bead 
of  Delaware  p.  443.) 

This  letter  is  very  far  from  being  conclusive. 
In  the  first  place  it  does  not  appear  that  Mr. 
Bead  had  seen  the  original  of  this  "copied 
draught"  or  that  Pinckney  had  given  him  the 
copy  or  had  told  him  what  his  plan  was  or  that 
any  person  who  had  seen  the  original  draught 
had  told  him  what  it  contained.  In  the  second 
place  the  existence  of  an  unauthenticated  copy 
on  the  20th  of  May  does  not  conclusively  prove 
that  a  different  version  of  the  same  draught 
was  not  presented  to  the  Convention  on  the 
29th  of  May.  Still  this  letter  undoubtedly  re- 
fers to  Pinckney 's  draught  and  compels  a  more 
searching  examination  of  the  question  raised 
than  would  otherwise  be  necessary. 

In  a  paper  which  will  be  called,  briefly,  "the 
Observations ' '  written  by  Pinckney  before  he 
left  Charleston  he  sets  forth  at  length  a  de- 
scription of  his  plan  of  government.  In  the 
opening  paragraph  of  this  paper  he  says  that 
he  will  "give  each  article"  of  his  draught 
"that  either  materially  varies"  from  the  pres- 

90 


THE  IMPROBABILITIES 

ent  government  "or  is  new."  He  then  goes 
on  to  say  that  "the  first  important  alteration 
is  that  of  the  principle  of  representation." 
"Representation  is  a  sign  of  the  reality.  Upon 
this  principle,  however  abused,  the  Parliament 
of  Great  Britain  is  formed,  and  it  has  been 
universally  adopted  by  the  States  in  the  for- 
mation of  their  legislatures."  This  is  all 
which  Pinckney,  writing  before  the  Convention 
began  its  work,  had  to  say  concerning  the  low- 
er house  of  Congress.  His  Senate  was  new  and 
concerning  it  he  had  much  more  to  say,  and 
he  described  it.  But  of  the  lower  house,  the 
popular  body,  he  had  nothing  to  say  save  that 
there  would  be  such  a  house,  and  that  it  would 
rest  upon  the  principle  of  representation  ' '  uni- 
versally adopted  by  the  States  in  the  forma- 
tion of  their  legislatures."  The  Virginia  res- 
olutions undoubtedly  expressed  the  opinion  of 
substantially  all  Americans  when  they  said, 
"Resolved  that  the  members  of  the  first  branch 
of  the  national  legislature  ought  to  be  elected 
by  the  people  of  the  several  States."  Assured- 
ly if  the  draught  which  Pinckney  was  then  de- 
scribing had  contained  the  extraordinary  and 
novel  proposition  that  the  popular  branch  of 

91 


THE  PINCKNEY  DEAUGHT 

the  national  legislature,  the  body  which  should 
represent  the  people,  was  not  to  be  chosen  by 
the  people  he  would  have  had  something 
"new"  to  lay  before  the  Convention— some- 
thing which  did  not  exist  in  the  government 
of  any  English  speaking  people  in  the  world — 
something  which  "materially  varied"  from 
the  belief  and  usage  and  history  and  traditions 
of  the  people  who  were  to  ordain  this  Consti- 
tution. Knowing  Pinckney  as  we  do — his 
general  views,  his  adherence  to  the  general 
principles  of  the  British  constitution,  his  at- 
tentive study  of  State  constitutions,  his  out- 
spokenness, his  belief  in  his  own  devices,  we 
know  that  if  his  draught  had  then  contained 
so  radical  a  departure  from  all  existing  consti- 
tutions as  that  which  he  subsequently  proposed 
in  the  Convention,  and  if  he  had  worked  him- 
self into  a  belief  at  the  time  when  he  wrote  the 
Observations  that  the  election  of  their  repre- 
sentatives by  the  people  was  "theoretical  non- 
sense", he  could  not  have  refrained  from  say- 
ing so.  What  is  said  in  the  Observations  har- 
monized with  the  constitutions  of  every  State 
in  the  Confederation  and  with  the  Virginia 
resolutions  and  with  the  views  of  every  mem- 

92 


THE  IMPROBABILITIES 

ber  of  the  Convention  excepting  the  five  great 
land  owners  from  South  Carolina. 

The  Observations,  therefore  (written  before 
the  Convention  and  published  afterwards), 
sustain  the  draught  in  the  State  Department. 

The  words  t '  the  people ' '  appear  directly  and 
necessarily  in  article  3  of  the  draught:  "The 
Members  of  the  House  of  Delegates  shall 

be  chosen  every year  by  the  people  of  the 

several  States;  and  the  qualifications  of  the 
electors  shall  be  the  same  as  those  of  the  elect- 
ors in  the  several  States  for  their  Legisla- 
tures." They  reappear  casually  and  need- 
lessly in  article  5 :  "  Each  State  shall  prescribe 
the  time  and  manner  of  holding  elections  by 
the  people  for  the  House  of  Delegates. "  The 
draught  therefore  in  these  provisions  is  con- 
sistent with  itself. 

In  the  draught  of  the  Committee  of  Detail 
the  words  of  Pinckney's  article  3  again  appear 
with  some  amplification,  but  in  the  same  order 
with  the  same  context  and  with  the  same  in- 
tent. Such  agreements  come  not  by  chance. 

And  if  such  agreements  come  not  by  chance, 
could  Pinckney  while  he  was  copying  the  com- 
mittee 's  draught  for  his  own  article  3  have 

93 


THE  PINCKNEY  DRAUGHT 

written  these  two  troublesome  words  "the  peo- 
ple" without  taking  heed  of  their  significance, 
without  realizing  what  he  was  doing,  without 
remembering  that  his  own  draught  had  said 
"the  legislatures  of  the  several  States. "  He 
could  not !  For  there  is  another  provision  in 
the  draught  in  the  State  Department  which 
was  not  taken  from  the  committee's  draught — 
which  did  not  exist  in  the  committee 's  draught 
— which  must  have  been  deliberately  framed 
by  Pinckney — the  provision  before  quoted 
from  article  5, i  l  Each  State  shall  prescribe  the 
time  and  manner  of  holding  elections  by  the 
people  for  the  House  of  Delegates."  That  is 
to  say  if  Pinckney  unintentionally  abstracted 
his  article  3  from  the  committee's  draught  in 
1818,  he,  nevertheless,  must  have  fabricated 
designedly  his  article  5  at  the  same  time;  for 
there  is  nothing  in  the  committee 's  draught  to 
suggest  it. 

Then  the  question  immediately  arises,  What 
motive  could  Pinckney  have  had  for  falsifying 
his  draught  and  making  this  change  from  the 
election  of  delegates  by  State  legislatures  to 
their  election  by  the  people  of  the  several 
States.  The  answer  of  the  superficial  of 

94 


THE  IMPROBABILITIES 

course  will  be,  "So  that  the  world  should  be- 
lieve that  he  had  always  been  in  favor  of  the 
election  of  representatives  by  the  people. " 
No  other  reason  can  well  be  assigned ;  yet  there 
could  not  have  been  such  a  motive.  Pinckney 
knew  that  his  draught  was  to  be  soon  published 
and  that  with  it  would  be  published  the  official 
Journal  of  the  Convention  and  that  the  publi- 
cation would  disclose  to  the  world  this  record: 

"Wednesday,  June  6,  1787 

"Mr.  Gorham  in  the  Chair. 
"It  was  moved  by  Mr.  Pinckney,  seconded 
by  Mr.  Eutledge  to  strike  the  word  'people* 
out  of  the  4th  resolution  submitted  by  Mr.  Ran- 
dolph, and  to  insert  in  its  place  the  word 

'Legislatures'  so  as  to  read  'resolved  that 
the  Members  of  the  first  branch  of  the  national 
legislature  ought  to  be  elected  by  the  Legisla- 
tures of  the  several  States' 

"and  on  the  question  to  strike  out 
"it  passed  in  the  negative." 

If  Pinckney 's  article  3  had  really  provided 
that  members  of  the  first  house  should  be  chos- 
en ~by  the  legislatures  of  the  several  States,  cer- 

95 


THE  PINCKNEY  DRAUGHT 

tainly  his  article  5  would  not  have  provided 
that  "each  State  shall  prescribe  the  time  and 
manner  of  holding  elections  by  the  people." 
Article  3  laid  down  the  basic  principle  that 
representatives  were  to  be  chosen  by  the  peo- 
ple, and  article  5  provided  for  the  time  and 
manner  when  and  whereby  the  people  should 
elect  their  representatives;  and  article  4  pro- 
vided that  Senators  should  be  chosen,  not  by 
the  people  or  the  legislatures  of  the  several 
States,  but  by  the  House  of  Delegates.  In  all 
these  provisions  we  again  see  that  the  draught 
in  the  State  Department  is  consistent  with  it- 
self. 

It  is  possible  that  the  person  who  gave  the 
"copied  draught "  to  Mr.  Head  was  Pinckney 
himself ;  and  it  is  probable  that  by  the  20th  of 
May  he  had  changed  his  mind  concerning  the 
election  of  delegates  by  the  people  and  had  de- 
termined to  make  his  draught  conform  to  the 
views  of  his  fellow  delegates  from  South  Caro- 
lina. We  knew,  as  will  hereafter  appear,  that 
he  contemplated  making  many  amendments  to 
his  draught  before  presenting  it  to  the  Conven- 
tion ;  and  that  he  hastily  and  prematurely  pre- 
sented it  on  the  29th  of  May  so  that  it  should 

96 


THE  IMPROBABILITIES 

go  with  the  Virginia  resolutions  to  the  Com- 
mittee of  the  Whole.  The  change  we  are  con- 
sidering may  not  have  been  made  in  the  writ- 
ten instrument  which  he  laid  upon  the  Secre- 
tary's desk,  though  he  made  the  change  in  his 
own  mind.  But  be  that  as  it  may,  it  is  as  cer- 
tain as  existing  knowledge  goes  that  no  man 
saw  the  original  draught  with  the  words  "by 
the  people "  twice  stricken  out  and  the  words 
"by  the  legislatures  of  the  several  States " 
twice  written  in;  and  until  this  change  in  the 
original  draught  is  shown  by  positive  testi- 
mony, unequivocal  in  terms  and  above  suspi- 
cion in  character,  the  circumstantial  evidence 
that  the  draught  went  to  the  Convention  with 
the  words  "the  people"  in  the  3d  and  5th  arti- 
cles is  overwhelming. 

There  are  some  other  things  specified  in  the 
Note  not  of  great  importance,  but  which  serve 
to  show  how  eagerly  Madison  clutched  at  any- 
thing that  would  operate  as  a  makeweight 
against  Pinckney  and  his  draught. 

Article  VIII  "is  remarkable  also  for  the  cir- 
cumstance that  whilst  it  specifies  the  functions 
of  the  President,  no  provision  is  contained  in 
the  paper  for  the  election  of  such  an  officer." 

97 


THE  PINCKNEY  DRAUGHT 

This  is  not  a  complete  statement  of  the  case. 
The  article  declares  that  "the  executive  pow- 
er "  shall  be  vested  in  a  President  and  that  "he 
shall  be  elected  for years."  The  provi- 
sions relating  to  the  President  were  on  their 
face  incomplete.  There  are  virtually  two 
blanks  left  in  the  provision,  the  one  relating 
to  the  length  of  the  President's  term  of  office, 
the  other  to  the  manner  in  which  he  should  be 
chosen.  The  12th  resolution  filled  these 
blanks  for  a  time  by  saying  i '  seven  years ' '  for 
the  one  and  by  '  '  the  National  legislature ' '  for 
the  other.  Here  were  "results"  arrived  at  in 
the  Convention.  That  Pinckney  did  not  fill 
these  blanks  in  the  Department  copy — blanks 
so  obvious  and  so  easily  filled — goes  a  great 
way  to  show  that  he  did  not  in  any  place  com- 
plete his  draught  by  writing  into  it  "results" 
arrived  at  in  the  Convention.  It  is  a  strained, 
artificial  conclusion  which  calls  an  omission 
' '  remarkable ' '  when  the  instrument  is  avowed- 
ly nothing  but  an  incomplete,  tentative  draught 
prepared  for  the  future  consideration  of  its 
author  as  well  as  other  persons. 

Madison    notes    "variances"    between    the 
draught  in  the  Department  and  the  proposi- 

98 


THE  IMPROBABILITIES 

tions  and  arguments  of  Pinckney  in  the  Con- 
vention. "Thus  in  article  VIII"  he  says, 
Pinckney  provides  for  the  impeachment  of  the 
President  but  on  the  20th  of  July  he  was  op- 
posed to  "any  impeachability  of  the  Execu- 
tive." "He  was  sure  they  ought  not  to  issue 
from  the  legislature  wlw  would  in  that  case 
hold  them  as  a  rod  over  the  Executive/'  But 
the  draught  says  much  more  than  Madison  re- 
peats. "He  shall  be  removed  from  his  office 
on  impeachment  by  the  House  of  Delegates 
and  conviction  in  the  Supreme  Court."  Pinck- 
ney did  not  oppose  that  in  the  Convention. 
Madison  on  his  own  record  clearly  had  no  right 
to  say  that  Pinckney  "was  opposed  to  any  im- 
peachability of  the  Executive."  He  did  not 
oppose  such  an  impeachability  as  his  draught 
provided  for  viz.,  by  the  Supreme  Court,  and 
his  reasons  quoted  by  Madison  do  not  apply  to 
the  impeachability  provided  in  his  draught. 

"In  article  III  it  is  required  that  all  money- 
bills  shall  originate  in  the  first  branch  of  the 
legislature;  which  he  strenuously  opposed  on 
the  8th  of  August  and  again  on  the  llth." 
Here  Madison  overlooked  the  significance  of 
these  dates.  They  are  subsequent  to  the  report 

99 


THE  PINCKNEY  DKAUGHT 

of  the  Committee  of  Detail  by  which  report 
Pinckney 's  plan  for  the  organization  of  the 
Senate  had  been  rejected.  Pinckney  alluded  to 
this  on  the  llth  when  he  said,  "The  rule  of 
representation  in  the  first  branch  was  the  true 
condition  to  that  in  the  second  branch. " 
Neither  does  it  appear  in  Madison's  Journal 
that  he  "strenuously  opposed."  On  the  llth  he 
"was  sorry  to  oppose  reopening  the  question," 
but  "he  considered  it  a  mere  waste  of  time." 
On  the  8th  his  opposition  had  been  couched  in 
three  lines,  i  i  If  the  Senate  can  be  trusted  with 
the  many  great  powers  proposed,  it  surely  can 
be  trusted  with  that  of  originating  money- 
bills."  Pinckney 's  real  position  in  regard  to 
this  was  clearly  stated  by  himself  and  thus  re- 
corded by  Madison  on  Wednesday,  June  13th ; 
"Mr.  Pinckney  thinks  the  question  premature. 
If  the  Senate  should  be  formed  on  the  same 
proportional  representation,  as  it  stands  at 
present,  they  should  have  equal  power.  Other- 
wise a  different  principle  should  be  intro- 
duced." How  did  the  Senate  "stand  at  pres- 
ent, ' '  on  June  13th.  This  is  shown  by  the  reso- 
lutions of  the  Committee  of  the  Whole  of  the 
same  day.  "That  the  right  of  suffrage  in  the 

100 


THE  IMPECCABILITIES 

second  branch  of  the  national  legislature  ought 
to  be  according  to  the  rule  established  for  the 
first  branch."  Kesolution  8.  The  Senate 
therefore  was  "at  present,"  a  very  different 
representative  body  than  the  Senate  of  Pinck- 
ney's  draught;  and  to  say  on  these  changed 
conditions  and  on  the  record  of  what  he  did 
say  that  he  "strenuously  opposed"  the  very 
thing  which  he  had  adopted  in  his  draught  is  a 
wild  use  of  terms. 

"In  article  V,  members  of  each  house  are 
made  ineligible  to  as  well  as  incapable  of  hold- 
ing any  office"  a  provision,  Madison  contin- 
ues, which  "was  highly  disapproved  of  by  him 
on  the  14th  of  August." 

What  was  this  disapproval  I  Article  V  pro- 
vides that  the  members  of  each  house  shall  not 
be  eligible  to  office  during  the  time  for  which 
they  have  been  respectively  elected,  "nor  the 
members  of  the  Senate  for  one  year  after." 
This  idea  that  a  member  of  Congress  should 
not  hold,  during  his  legislative  term  of  office, 
an  executive  office  which  he  had  helped  to  cre- 
ate or  the  emoluments  of  which  he  had  helped 
to  increase,  undoubtedly  existed  in  many 
minds.  But  under  the  scheme  embodied  in  the 

101 


THE  PINCKNEY  DKAUGHT 

Pinckney  draught  there  was  a  peculiar  reason 
why  the  ineligibility  of  Senators  should  con- 
tinue after  their  legislative  terms  of  office  had 
expired.  That  reason  was  because  (Art. 
VIII),  the  Senate  was  to  be  an  appointing  pow- 
er. It  was  to  "have  sole  and  exclusive  power 
to"  "appoint  ambassadors,  and  other  minis- 
ters to  foreign  nations,  and  judges  of  the  Su- 
preme Court."  Under  this  scheme  it  was  ob- 
vious that  a  Senator  should  not  be  allowed  to 
step  out  of  office  at  the  expiration  of  his  term 
on  one  day  and  be  appointed  by  his  late  col- 
leagues to  an  important  office  on  the  next  day. 
It  is,  therefore,  not  a  surprising  thing  to  find 
this  provision  in  the  draught  and  to  find  it  ap- 
plied only  to  the  Senate. 

On  the  14th  of  August  Pinckney  had  so  far 
modified  his  own  views  that  he  was  then  in  fav- 
or of  making  the  members  of  each  House  in- 
capable of  holding  executive  salaried  offices 
while  they  continued  members,  with  a  provi- 
sion that  "the  acceptance  of  such  office  shall 
vacate  their  seats  respectively."  This  having 
failed  in  Convention,  he  on  the  same  day  urged 
a  general  postponement  of  the  subject  "until  it 
should  be  seen  what  powers  should  be  vested 

102 


THE  IMPROBABILITIES 

in  the  Senate"  "when,"  he  said,  "it  would  be 
more  easy  to  judge  of  the  expediency  of  al- 
lowing officers  of  State  to  be  chosen  out  of  that 
body."  This  postponement  was  agreed  to 
nem.  con.  It  is  manifest  that  the  idea  of  the 
Senate  being  an  appointing  power  was  still  up- 
permost in  his  mind.  He  gave  good  reasons 
for  not  making  ineligibility  absolute;  but  he 
consistently  adhered  to  the  idea  that  the  same 
person  should  not  be  both  a  Legislator  and  an 
officer  of  State. 

On  the  14th  of  August  Pinckney  proposed  to 
make  members  ineligible  to  hold  any  office  by 
which  they  would  receive  a  salary.  This  was 
merely  a  restriction  on  the  original  proposi- 
tion of  the  draught,  a  limiting  of  its  applica- 
tion to  salaried  offices  but  leaving  members 
eligible  and  capable  of  filling  honorary  posi- 
tions. To  say  that  his  original  proposition 
was  thereby  "highly  disapproved"  by  him  is 
certainly  an  abuse  of  the  term  "highly  disap- 
proved." The  objection  of  Madison  when 
tested  by  his  own  record,  the  Journal,  comes 
down  to  this :  that  three  months  or  more  after 
Pinckney  wrote  the  draught,  he  thought  it  bet- 
ter to  limit  the  Constitutional  prohibition  to 

103 


THE  PINCKNEY  DBAUGHT 

"salaried  offices."  This  restriction  was  a 
trivial  and  a  sensible  modification.  To  infer 
from  it  that  Pinckney  then  "  highly  disap- 
proved" his  own  original  proposition  merely 
marks  the  nervous  excitement  which  seems  to 
have  impelled  Madison  to  exaggerate  every 
little  deviation  of  Pinckney  from  the  strict  let- 
ter of  his  draught  into  conclusive  evidence  that 
this  draught  never  existed. 

This  brings  us  to  the  extrinsic  evidence  on 
which  Madison  relied,  the  testimony  of  Pinck- 
ney against  himself. 


104 


CHAPTER  IX. 

THE    OBSERVATIONS 

THE  Observations  of  Pinckney,  in  Madi- 
son's estimation,  fully  sustained  his  ar- 
guments and  justified  his  attacks  on  the  verity 
of  the  draught  in  the  State  Department.  The 
publication  so  entitled  is  a  small  pamphlet  of 
27  pages.  It  has  the  following  title  page : 

Observations 

on  the 

PLAN  OF  GOVERNMENT 

Submitted  to  the 

FEDERAL  CONVENTION 

in  Philadelphia  on  the  28th  of  May,  1787 

By  Mr.  Charles  Pinckney 

Delegate  from  the  State  of  South  Carolina 

DELIVERED  AT  DIFFERENT   TIMES 
IN   THE   COURSE  OF   THEIR  DISCUSSIONS. 

New  York.    Printed 

by  Francis  Childs 

105 


THE  PINCKNEY  DKAUGHT 

Two  copies  of  this  are  in  the  library  of  the 
New  York  Historical  Society,  and  it  is  re- 
printed in  Moore's  American  Eloquence.  It 
bears  no  date,  but  we  learn  from  Madison's 
letter  to  Washington  (before  quoted)  that  it 
must  have  been  published  before  the  14th  of 
October,  1787 ;  that  is  to  say  immediately  after 
the  dissolution  of  the  Convention  on  the  17th 
of  September. 

Madison  unquestionably  relied  upon  this 
pamphlet  as  containing  the  highest  evidence 
against  the  verity  of  the  draught  in  the  State 
Department.  The  anxiety  which  he  showed  to 
obtain  it,  and  the  care  with  which  he  brought 
it  to  the  attention  of  those  who  were  or  who 
in  the  future  might  be  interested  in  the  mat- 
ter make  it  plain  that  he  regarded  the  Ob- 
servations as  a  conservatory  of  admissions 
which  Pinckney  would  not  deny  if  he  were  liv- 
ing, and  which  his  friends  could  not  contro- 
vert now  that  Pinckney  was  dead. 

The  first  record  we  have  of  Madison's  re- 
liance on  this  pamphlet  is  a  memorandum 
found  among  his  papers  which  bears  no  date 
but  which  must  have  been  written  prior  to 
April  6th,  1831. 

106 


THE  OBSERVATIONS 

"FOR  MR.  PAULDING" 

"Much  curiosity  and  some  comment  have 
been  exerted  by  the  marvellous  identities  in  a 
plan  of  Government  proposed  by  Charles 
Pinckney  in  the  Convention  of  1787  as  pub- 
lished in  the  Journals  with  the  text  of  the  Con- 
stitution, as  finally  agreed  to.  I  find  among 
my  pamphlets  a  copy  of  a  small  one  entitled 
Observations  on  the  Plan  of  Government  sub- 
mitted to  the  Federal  Convention,  in  Phila- 
delphia, on  the  28th  of  May,  by  Mr.  C.  Pinck- 
ney, a  Delegate  from  S.  Carolina,  delivered  at 
different  times  in  the  Convention. 

"The  copy  is  so  defaced  and  mutilated  that 
it  is  impossible  to  make  out  enough  of  the 
plan,  as  referred  to  in  the  Observations,  for  a 
due  comparison  of  it  with  that  printed  in  the 
Journal.  The  pamphlet  was  printed  in  N. 
York  by  Francis  Childs.  The  year  is  defaced. 
It  must  have  been  not  very  long  after  the  close 
of  the  Convention,  and  with  the  sanction,  at 
least,  of  Mr.  Pinckney  himself.  It  has  oc- 
curred to  me  that  a  copy  may  be  attainable  at 
the  printing  office,  if  still  kept  up,  or  in  some 
of  the  libraries  or  historical  collections  in  the 

107 


THE  PINCKNEY  DBAUGHT 

city.  When  you  can  snatch  a  momentum  your 
walks  with  other  views,  for  a  call  at  such 
places,  you  will  promote  an  object  of  some  lit- 
tle interest  as  well  as  delicacy,  by  ascertaining 
whether  the  article  in  question  can  be  met 
with.  I  have  among  my  manuscript  papers 
lights  on  the  subject.  The  pamphlet  of  Mr. 
P.  could  not  fail  to  add  to  them. 
"April,  1831." 

At  some  time  subsequent  to  the  6th  of  April 
he  wrote  to  Mr.  Paulding,  saying  that  in  a 
previous  letter  "  I  requested  you  to  make  an 
inquiry  concerning  a  small  pamphlet  of 
Charles  Pinckney  printed  at  the  close  of  the 
Federal  Convention  of  1787;"  and  on  the  6th 
of  June  he  again  wrote  to  Mr.  Paulding, 

"  June  6th,  1831. 

"DEAR  SIR. — Since  my  letter  answering 
yours  of  April  6th,  in  which  I  requested  you 
to  make  an  inquiry  concerning  a  small  pam- 
phlet of  Charles  Pinkney  printed  at  the 
close  of  the  Federal  Convention  of  1787, 
it  has  occurred  to  me  that  the  pamphlet 
might  not  have  been  put  in  circulation, 
108 


THE  OBSEEVATIONS 

but  only  presented  to  his  friends,  etc.  In  that 
way  I  may  have  become  possessed  of  the  copy 
to  which  I  referred  as  in  a  damaged  state.  On 
this  supposition  the  only  chance  of  success 
must  be  among  the  books,  etc.,  of  individuals 
on  the  list  of  Mr.  Pinckney's  political  associ- 
ates and  friends.  Of  those  who  belonged  to 
N.  York,  I  recollect  no  one  so  likely  to  have  re- 
ceived a  copy  as  Eufus  King.  If  that  was  the 
case,  it  may  remain  with  his  representative, 
and  I  would  suggest  an  informal  resort  to  that 
quarter,  with  a  hope  that  you  will  pardon  this 
further  tax  on  your  kindness." 

On  the  27th  of  June  he  wrote  to  Mr.  Pauld- 
ing  for  the  third  time  regarding  the  Observa- 
tions : 

"  June  27th,  1831. 

"DEAR  SIR:— With  your  favor  of  the  20th 
instant  I  received  the  volume  of  pamphlets 
containing  that  of  Mr.  Charles  Pinckney,  for 
which  I  am  indebted  to  your  obliging  re- 
searches. The  volume  shall  be  duly  returned, 
and  in  the  mean  time  duly  taken  care  of.  I 
have  not  sufficiently  examined  the  pamphlet  in 
question,  but  I  have  no  doubt  that  it  throws 
light  on  the  subject  to  which  it  has  relation.'' 

109 


THE  PINCKNEY  DRAUGHT 

On  the  25th  of  November  he  wrote  at  length 
to  Jared  Sparks  setting  forth  all  his  objec- 
tions to  the  draught  and  added :  ' '  Further  dis- 
crepancies might  be  found  in  the  observations 
of  Mr.  Pinckney,  printed  in  a  pamphlet  by 
Francis  Childs,  in  New  York,  shortly  after  the 
close  of  the  Convention.  I  have  a  copy  too 
mutilated  for  use,  but  it  may  probably  be  pre- 
served in  some  of  your  historical  reposito- 
ries. " 

On  the  5th  of  June  1835  he  wrote  to  Judge 
Duer :  ' '  Other  discrepancies  will  be  found  in  a 
source  also  within  your  reach,  in  a  pamphlet 
published  by  Mr.  Pinckney  soon  after  the  close 
of  the  Convention,  in  which  he  refers  to  parts 
of  his  plan  which  are  at  variance  with  the  docu- 
ment in  the  printed  Journal.  A  friend  who 
has  examined  and  compared  the  two  docu- 
ments has  pointed  out  the  discrepancies  noted 
below. " 

Then  follows  the  list  of  discrepancies 
"pointed  out-"  by  "a  friend";  and  in  this  let- 
ter he  refers  Judge  Duer  to  the  Library  of  the 
Historical  Society  of  New  York  as  the  place 
where  a  copy  of  the  Observations  can  be 
found. 

110 


THE  OBSEEVATIONS 

The  following  paragraphs  from  the  Obser- 
vations contain  all  that  bears  upon  the  con- 
tents of  the  draught,  and  all  upon  which  Madi- 
son relied. 

"  There  is  no  one,  I  believe,  who  doubts 
there  is  something  particularly  alarming  in 
the  present  conjuncture.  There  is  hardly  a 
man  in  or  out  of  office,  who  holds  any  other 
language.  Our  Government  is  despised — our 
laws  are  robbed  of  their  respected  terrors — 
their  inaction  is  a  subject  of  ridicule — and 
their  exertion,  of  abhorrence  and  opposition 
— rank  and  office  have  lost  their  reverence 
and  effect — our  foreign  politics  are  as  much 
deranged,  as  our  domestic  economy — our 
friends  are  slackened  in  their  affection,  and 
our  citizens  loosened  from  their  obedience. 
We  know  neither  how  to  yield  nor  how  to  en- 
force— hardly  any  thing  abroad  or  at  home  is 
sound  and  entire — disconnection  and  confu- 
sion in  offices,  in  States  and  in  parties,  prevail 
throughout  every  part  of  the  Union.  These 
are  facts  universally  admitted  and  lamented." 

"Be  assured  that  however  unfashionable 
for  the  moment  your  sentiments  may  be,  yet, 

111 


THE  PINCKNEY  DRAUGHT 

if  your  system  is  accommodated  to  the  situa- 
tion of  the  Union,  and  founded  in  wise  and 
liberal  principles,  it  will  in  time  be  consented 
to.  An  energetic  government  is  our  true 
policy,  and  it  will  at  last  be  discovered  and 
prevail. ' ' 

"Presuming  that  the  question  will  be  taken 
up  de  novo,  I  do  not  conceive  it  necessary  to 
go  into  minute  detail  of  the  defects  of  the  pres- 
ent confederation,  but  request  permission  to 
submit,  with  deference  to  the  House,  the 
draught  of  a  government  which  I  have  formed 
for  the  Union.  The  defects  of  the  present  will 
appear  in  the  course  of  the  examination.  I 
shall  give  each  article  that  either  materially 
varies  or  is  new.  I  well  know  the  science  of 
government  is  at  once  a  delicate  and  difficult 
one,  and  none  more  so  than  that  of  republics. 
I  confess  my  situation  or  experience  have  not 
been  such  as  to  enable  me  to  form  the  clearest 
and  justest  opinions.  The  sentiments  I  shall 
offer  are  the  result  of  not  so  much  reflection  as 
I  could  have  wished.  The  plan  will  admit  of 
important  amendments.  I  do  not  mean  at 
once  to  offer  it  for  the  consideration  of  the 

112 


THE  OBSEEVATIONS 

House,  but  have  taken  the  liberty  of  mention- 
ing it,  because  it  was  my  duty  to  do  so. 

"The  first  important  alteration  is  that 
of  the  principle  of  representation  and  the  dis- 
tribution of  the  different  powers  of  govern- 
ment. In  the  federal  councils,  each  State 
ought  to  have  a  weight  in  proportion  to  its 
importance ;  and  no  State  is  justly  entitled  to 
greater.  A  representation  is  a  sign  of  the 
reality.  Upon  this  principle,  however  abused, 
the  Parliament  of  Great  Britain  is  formed, 
and  it  had  been  universally  adopted  by  the 
States  in  the  formation  of  their  legislatures." 

"In  the  Parliament  of  Great  Britain  as 
well  as  in  most  and  the  best  instituted  legisla- 
tures of  the  States,  we  find  not  only  two 
branches,  but  in  some  a  council  of  revision, 
consisting  of  their  executive  and  principal  of- 
ficers of  government.  This  I  consider  as  an 
improvement  in  legislation,  and  have  there- 
fore incorporated  it  as  a  part  of  the  system. 

"The  Senate,  I  propose  to  have  elected 
by  the  House  of  Delegates,  upon  proportiona- 
ble principles,  in  the  manner  I  have  stated, 
which  though  rotative,  will  give  a  sufficient  de- 

113 


THE  PINCKNEY  DRAUGHT 

gree  of  stability  and  independence.  The  dis- 
tricts, into  which  the  Union  is  to  be  divided, 
will  be  so  apportioned  as  to  give  to  each  its 
due  weight,  and  the  Senate,  calculated  in  this, 
as  it  ought  to  be  in  every  government,  to  rep- 
resent the  wealth  of  the  nation. 

"The  executive  should  be  appointed  septen- 
nially,  but  his  eligibility  ought  not  to  be 
limited:  He  is  not  a  branch  of  the  legisla- 
ture farther,  than  as  a  part  of  the  council  of 
revision;  and  the  suffering  him  to  continue 
eligible  will  not  only  be  the  means  of  ensuring 
his  good  behavior,  but  serve  to  render  the  of- 
fice more  respectable. 

"The  4th  article,  respecting  the  extend- 
ing the  rights  of  the  citizens  of  each  State 
throughout  the  United  States;  the  delivery  of 
fugitives  from  justice  upon  demand,  and  the 
giving  full  faith  and  credit  to  the  records  and 
proceedings  of  each,  is  formed  exactly  upon 
the  principles  of  the  4th  article  of  the  present 
confederation,  except  with  this  difference,  that 
the  demand  of  the  Executive  of  a  State  for 
any  fugitive  criminal  offender  shall  be  com- 
plied with.  It  is  now  confined  to  treason, 
felony,  or  other  high  misdemeanor;  but  as 

114 


THE  OBSERVATIONS 

there  is  no  good  reason  for  confining  it  to 
those  crimes,  no  distinction  ought  to  exist,  and 
a  State  should  always  be  at  liberty  to  demand 
a  fugitive  from  its  justice,  let  his  crime  be 
what  it  may. 

"The  5th  article,  declaring  that  individ- 
ual States  shall  not  exercise  certain  powers, 
is  also  founded  on  the  same  principle  as  the 
6th  of  the  confederation. 

"The  next  is  an  important  alteration  of 
the  Federal  system,  and  is  intended  to  give 
the  United  States  in  Congress,  not  only  a  re- 
vision of  the  legislative  acts  of  each  State,  but 
a  negative  upon  all  such  as  shall  appear  to 
them  improper. 

"I  apprehend  the  true  intention  of  the 
States  in  uniting  is,  to  have  a  firm,  national 
government,  capable  of  effectually  executing 
its  acts,  and  dispensing  its  benefits  and  protec- 
tion. In  it  alone  can  be  vested  those  powers 
and  prerogatives  which  more  particularly  dis- 
tinguish a  sovereign  State.  The  members 
which  compose  the  superintending  government 
are  to  be  considered  merely  as  parts  of  a  great 
whole,  and  only  suffered  to  retain  the  powers 
necessary  to  the  administration  of  their  State 

115 


THE  PINCKNEY  DBAUGHT 

systems.  The  idea  which  has  been  so  long  and 
falsely  entertained  of  each  being  a  sovereign 
State,  must  be  given  up;  for  it  is  absurd  to 
suppose  there  can  be  more  than  one  sover- 
eignty within  a  government.  The  States 
should  retain  nothing  more  than  that  mere 
local  legislation,  which,  as  districts  of  a  gen- 
eral government,  they  can  exercise  more  to 
the  benefit  of  their  particular  inhabitants, 
than  if  it  was  vested  in  a  Supreme  Council; 
but  in  every  foreign  concern  as  well  as  in  those 
internal  regulations,  which  respecting  the 
whole  ought  to  be  uniform  and  national,  the 
States  must  not  be  suffered  to  interfere.  No 
act  of  the  Federal  Government  in  pursuance 
of  its  constitutional  powers  ought  by  any 
means  to  be  within  the  control  of  the  State 
Legislatures ;  if  it  is,  experience  warrants  me 
in  asserting  they  will  assuredly  interfere  and 
defeat  its  operation. 

"The  next  article  proposes  to  invest  a 
number  of  exclusive  rights,  delegated  by  the 
present  confederation,  with  this  alteration: 
that  it  is  intended  to  give  the  unqualified 
power  of  raising  troops,  either  in  time  of 

116 


THE  OBSEBVATIONS 

peace  or  war,  in  any  manner  the  Union  may 
direct.  It  does  not  confine  them  to  raise 
troops  by  quotas  on  particular  States,  or  to 
give  them  the  right  of  appointing  regimental 
officers,  but  enables  Congress  to  raise  troops 
as  they  shall  think  proper,  and  to  appoint  all 
the  officers.  It  also  contains  a  provision  for 
empowering  Congress  to  levy  taxes  upon  the 
States,  agreeable  to  the  rule  now  in  use,  an 
enumeration  of  the  white  inhabitants,  and 
three-fifths  of  other  descriptions. 

"The  7th  article  invests  the  United  States 
with  the  complete  power  of  regulating  the 
trade  of  the  Union,  and  levying  such  imposts 
and  duties  upon  the  same,  for  the  use  of  the 
United  States,  as  shall  in  the  opinion  of  Con- 
gress, be  necessary  and  expedient. 

"The  8th  article  only  varies  so  far  from 
the  present,  as  in  the  article  of  the  Post  Of- 
fice, to  give  the  Federal  Government  a  power 
not  only  to  exact  as  much  postage  as  will  bear 
the  expense  of  the  office,  but  also  for  the  pur- 
pose of  raising  a  revenue.  Congress  had  this 
in  contemplation  some  time  since,  and  there 
can  be  no  objection,  as  it  is  presumed,  in  the 

117 


THE  PINCKNEY  DRAUGHT 

course  of  a  few  years  the  Post  Office  will  be 
capable  of  yielding  a  considerable  sum  to  the 
public  treasury. 

"The  9th  article,  respecting  the  appoint- 
ment of  Federal  courts  for  deciding  territorial 
controversies  between  different  States,  is  the 
same  with  that  in  the  confederation;  but  this 
may  with  propriety  be  left  to  the  supreme  ju- 
diciary. 

"The  10th  article  gives  Congress  a  right 
to  institute  all  such  offices  as  are  necessary  for 
managing  the  concerns  of  the  Union ;  of  erect- 
ing a  federal  judicial  court  for  the  purposes 
therein  specified;  and  of  appointing  courts  of 
Admiralty  for  the  trial  of  maritime  causes  in 
the  States  respectively. 

"The  exclusive  right  of  coining  money — 
regulating  its  alloy,  and  determining  in  what 
species  of  money  the  common  treasury  shall 
be  supplied — is  essential  to  assuring  the  fed- 
eral funds. 

"In  all  those  important  questions,  where 
the  present  confederation  has  made  the  assent 
of  nine  States  necessary,  I  have  made  the  as- 
sent of  two-thirds  of  both  Houses,  when  as- 
sembled in  Congress,  and  added  to  the  number 

118 


THE  OBSEBVATIQNS 

the  regulation  of  trade,  and  acts  for  levying 
an  impost  and  raising  a  revenue. 

"The  exclusive  right  of  establishing  regula- 
tions for  the  government  of  the  milita  of  the 
United  States,  ought  certainly  to  be  vested  in 
the  federal  council. 

"The  article  empowering  the  United  States 
to  admit  new  States  into  the  confederacy  is 
become  indispensable,  from  the  separation  of 
certain  districts  from  the  original  States — and 
the  increasing  population  and  consequence  of 
the  western  territory.  I  have  also  added  an 
article  authorizing  the  United  States,  upon  the 
petition  from  the  majority  of  the  citizens  of 
any  State  or  convention  authorized  for  that 
purpose,  and  of  the  legislature  of  the  State 
to  which  they  wish  to  be  annexed,  or  of  the 
States  among  which  they  are  willing  to  be  di- 
vided, to  consent  to  such  junction  or  division, 
on  the  term  mentioned  in  the  article. 

"The  Federal  Government  should  also  pos- 
sess the  exclusive  right  of  declaring  on  what 
terms  the  privileges  of  citizenship  and  natu- 
ralization should  be  extended  to  foreigners. 

"The  16th  article  proposes  to  declare  that  if 
it  should  hereafter  appear  necessary  to  the 

119 


THE  PINCKNEY  DRAUGHT 

United  States  to  recommend  the  grant  of  any 
additional  powers,  that  the  assent  of  a  given 
number  of  the  States  shall  be  sufficient  to  in- 
vest them  and  bind  the  Union  as  fully  as  if 
they  had  been  confirmed  by  the  legislatures  of 
all  the  States.  The  principles  of  this,  and  the 
article  which  provides  for  the  future  altera- 
tion of  the  Constitution  by  its  being  first 
agreed  to  in  Congress,  and  ratified  by  a  cer- 
tain proportion  of  the  legislatures,  are  pre- 
cisely the  same. 

' '  There  is  also  in  the  articles  a  provision  re- 
specting the  attendance  of  the  members  of  both 
Houses;  it  is  proposed  that  they  shall  be  the 
judges  of  their  own  rules  and  proceedings, 
nominate  their  own  officers,  and  be  obliged, 
after  accepting  their  appointments,  to  attend 
the  stated  meetings  of  the  legislature ;  the  pen- 
alties under  which  their  attendance  is  required, 
are  such  as  to  insure  it,  as  we  are  to  suppose 
no  man  would  willingly  expose  himself  to  the 
ignominy  of  a  disqualification. 

"The  next  article  provides  for  the  privilege 
of  the  writ  of  habeas  corpus — the  trial  by  jury 
in  all  cases,  criminal  as  well  as  civil — the  free- 
dom of  the  press  and  the  prevention  of  reli- 
120 


THE  OBSERVATIONS 

gious  tests  as  qualifications  to  offices  of  trust 
or  emolument. 

"There  is  also  an  authority  to  the  national 
legislature,  permanently  to  fix  the  seat  of 
the  general  government,  to  secure  to  authors 
the  exclusive  right  to  their  performances  and 
discoveries,  and  to  establish  a  Federal  Uni- 
versity. 

"There  are  other  articles,  but  of  subordi- 
nate consideration.  In  opening  the  subject, 
the  limits  of  my  present  observations  would 
only  permit  me  to  touch  the  outlines ;  in  these 
I  have  endeavored  to  unite  and,  apply,  as  far 
as  the  nature  of  our  Union  would  permit,  the 
excellencies  of  such  of  the  States  *  Constitu- 
tions as  have  been  most  approved. 

"I  ought  again  to  apologize  for  presuming 
to  intrude  my  sentiments  upon  a  subject  of 
such  difficulty  and  importance.  It  is  one  that 
I  have  for  a  considerable  time  attended  to. 
I  am  doubtful  whether  the  convention  will,  at 
first  be  inclined  to  proceed  as  far  as  I  have  in- 
tended; but  this  I  think  may  be  safely  as- 
serted, that  upon  a  clear  and  comprehensive 
view  of  the  relative  situation  of  the  Union, 
and  its  members,  we  shall  be  convinced  of  the 

121 


THE  PINCKNEY  DRAUGHT 

policy  of  concentring  in  the  federal  head,  a 
complete  supremacy  in  the  affairs  of  govern- 
ment; leaving  only  to  the  States  such  powers 
as  may  be  necessary  for  the  management  of 
their  internal  concerns." 

The  first  comment  to  be  made  on  this  speech 
of  Pinckney's  is  that  it  was  never  made,  and 
that  no  speech  whatever  ivas  made  by  him 
when  he  presented  his  draught  to  the  Conven- 
tion. 

Upon  this  question  of  fact  there  are  two  wit- 
nesses, Madison  and  Yates.  The  evidence 
which  they  have  left  to  us  is  negative  and  posi- 
tive, the  one  showing  inferentially,  what  could 
not  have  occurred  in  the  Convention  on  the 
29th  of  May  1787  and  the  other  stating  posi- 
tively what  did  occur ;  the  one  absolutely  silent 
as  to  any  speech  by  Pinckney ;  the  other  telling 
us  that  "Mr.  Pinckney  a  member  from  South 
Carolina  then  added  that  he  had  reduced  his 
ideas  of  a  new  government  to  a  system  which 
he  then  read." 

Madison  has  written  for  us  an  account  of 
the  manner  in  which  he  took  his  notes  and 
wrote  out  his  Journal — a  most  interesting  ac- 
count, showing  us  the  method  he  pursued,  the 

122 


THE  OBSERVATIONS 

efforts  which  he  made,  and  reminding  us  how 
much  we  owe  him  for  his  fidelity  to  his  self- 
imposed  task. 

"The  curiosity  I  had  felt  during  my  re- 
searches into  the  history  of  the  most  distin- 
guished confederacies,  particularly  those  of 
antiquity,  and  the  deficiency  I  found  in  the 
means  of  satisfying  it,  more  especially  in  what 
related  to  the  process,  the  principles,  the  rea- 
sons, and  the  anticipations,  which  prevailed 
in  the  formation  of  them,  determined  me  to 
preserve,  as  far  as  I  could,  an  exact  account  of 
what  might  pass  in  the  Convention  whilst  ex- 
ecuting its  trust ;  with  the  magnitude  of  which 
I  was  duly  impressed,  as  I  was  by  the  grati- 
fication promised  to  future  curiosity  by  an 
authentic  exhibition  of  the  objects,  the  opin- 
ions, and  the  reasonings  from  which  the  new 
system  of  government  was  to  receive  its  pe- 
culiar structure  and  organization.  Nor  was  I 
unaware  of  the  value  of  such  a  contribution  to 
the  fund  of  materials  to  the  history  of  a  Con- 
stitution on  which  would  be  staked  the  happi- 
ness of  a  people  great  even  in  its  infancy,  and 
possibly  the  cause  of  liberty  throughout  the 
world. 

123 


THE  PINCKNEY  DRAUGHT 

"In  pursuance  of  the  task  I  had  assumed, 
I  chose  a  seat  in  front  of  the  presiding  mem- 
ber, with  the  other  members  on  my  right  and 
left  hands.  In  this  favorable  position,  for 
hearing  all  that  passed,  I  noted  in  terms  legi- 
ble, and  in  abbreviations  and  marks  intelli- 
gible to  myself,  what  was  read  from  the  chair 
or  spoken  by  the  members;  and  losing  not  a 
moment  unnecessarily  between  the  adjourn- 
ment and  reassembling  of  the  Convention, 
I  was  enabled  to  write  out  my  daily  notes 
during  the  session,  or  within  a  few  finish- 
ing days  after  its  close,  in  the  extent  and 
form  preserved,  in  my  own  hand,  on  my 
files. 

"In  the  labor  and  correctness  of  this,  I  was 
not  a  little  aided  by  practice,  and  by  a  famil- 
iarity with  the  style  and  the  train  of  observa- 
tion and  reasoning  which  characterized  the 
principal  speakers.  It  happened,  also,  that  I 
was  not  absent  a  single  day,  nor  more  than 
a  casual  fraction  of  an  hour  in  any  day,  so 
that  I  could  not  have  lost  a  single  speech,  un- 
less a  very  short  one." 

Yates  was  at  the  time  of  writing  his  Min- 
utes 49  years  of  age.  During  the  Eevolution 

124 


THE  OBSERVATIONS 

he  had  written  political  essays  highly  esteemed 
over  the  signature  of  the  Bough  Hewer.  He 
had  been  for  eleven  years  a  judge  of  the 
Supreme  Court  of  New  York — a  judge  of  the 
old  school  before  the  days  of  stenographers 
and  printed  arguments  and  was  well  trained 
in  taking  notes  of  what  counsel  said. 

The  Minutes  of  Yates  are  manifestly  the 
work  of  a  man  accustomed  to  take  down  the 
ideas  rather  than  the  words  of  public  speak- 
ers. His  reports  of  the  debates  are  briefer 
than  Madison's  showing  much  less  of  the  re- 
porter and  much  more  of  the  lawyer  or  judge 
accustomed  to  analyze  and  to  note  the  scope 
and  sense  of  an  argument.  His  report  of  the 
chief  speech  of  Pinckney,  that  of  June  25th, 
when  compared  with  the  full  speech  written 
out  by  Pinckney  for  Madison  is  a  remarkably 
clear  and  accurate  and  full  abstract.  It  is 
also  valuable  as  giving  us  an  abstract  of  the 
conclusion  of  the  speech  which  Pinckney  neg- 
lected to  furnish.  Madison  says  in  his  letter 
to  Judge  Duer,  "Mr.  Yates 's  notes  as  you  ob- 
serve are  very  inaccurate;  they  are  also  in 
some  respects  grossly  erroneous. "  There  are 
indeed  mistakes  resulting  from  his  non-ac- 

125 


THE  PINCKNEY  DRAUGHT 

quaintance  with  the  delegates;  and  especially 
in  his  confusing  the  names  of  the  two  Pinck- 
neys,  the  first  name  of  each  being  the  same  as 
the  first  name  of  the  other  and  both  being  dele- 
gates from  the  same  State.  But  be  that  as 
it  may,  Yates  correctly  characterized  the 
speech  of  Eandolph  as  "long  and  elaborate," 
and  Pinckney's  draught  as  a  "system"  of  a 
"new  government";  and  he  certainly  knew 
enough  to  distinguish  between  the  delivery  of  a 
long  speech  and  the  reading  of  a  formal  docu- 
ment. 

The  fact  therefor  must  be  regarded  as  es- 
tablished as  firmly  as  any  fact  recorded  in  the 
annals  of  the  Convention  that  on  the  day  when 
Pinckney  presented  his  draught  to  the  Con- 
vention he  did  not  deliver  and  could  not  have 
delivered  a  speech  making  27  pages  of  printed 
matter. 

There  is  another  fact  to  be  considered  in 
connection  with  the  foregoing.  Between  the 
opening  statements  of  the  Observations  and 
the  title  to  the  pamphlet  there  is  a  flat  contra- 
diction. In  the  speech  he  says  expressly  that 
the  "plan  will  admit  of  important  amend- 
ments"; that  he  does  "not  mean  to  offer  it  for 

126 


THE  OBSEEVATIONS 

the  consideration  of  the  House ";  that  he  has 
"  taken  the  liberty  of  mentioning  it  because  it 
was  his  duty  to  do  so."  In  the  title  to  the 
pamphlet  he  says,  "Plan  of  Government  sub- 
mitted to  the  Federal  Convention  in  Phila- 
delphia on  the  28th  of  May  1787."  It  is  plain 
that  the  speech  and  its  title  were  written  at 
different  times  and  that  in  this  the  two  are  ir- 
reconcilable. It  is  also  plain  that  Pinckney 
when  he  wrote  a  title  for  the  printer  in  New 
York  had  forgotten  the  detail  of  the  contents 
of  the  speech  and  did  not  take  the  trouble  to 
examine  it.  We  may  therefore  conclude  that 
the  two  events  were  far  apart,  the  one  having 
taken  place  in  Charleston  before  the  assem- 
bling of  the  Convention  and  the  other  taking 
place  in  New  York  when  the  publication  of 
the  speech  required  that  a  title  should  be 
given  to  it. 

Furthermore  the  title  to  the  speech  contains 
a  significant  error  in  saying  that  the  plan  of 
government  was  submitted  to  the  Convention 
"on  the  28th  of  May";  for  the  first  days  of  the 
Convention  were  not  days  to  be  quickly  for- 
gotten. 

The  day  fixed  for  the  meeting  of  the  dele- 
127 


THE  PINCKNEY  DEATTGHT 

gates  in  Convention  was  Monday,  May  14th 
1787.  Washington,  notwithstanding  his  pain- 
ful illness  during  the  winter  and  the  expected 
death  of  his  mother  was  among  the  first  who 
arrived  in  Philadelphia.  On  the  27th  of  April 
he  had  written  to  Knox,  ' '  Though  so  much  af- 
flicted with  a  Kheuinatick  complaint  (of  which 
I  have  not  been  entirely  free  for  Six  months) 
as  to  be  under  the  necessity  of  carrying  my 
arm  in  a  Sling  for  the  last  ten  days,  I  had 
fixed  on  Monday  next  for  my  departure,  and 
had  made  every  necessary  arrangement  for 
the  purpose  when  (within  this  hour)  I  am 
called  by  an  express,  who  assures  me  not  a 
moment  is  to  be  lost,  to  see  a  mother  and  only 
sister  (who  are  supposed  to  be  in  the  agonies 
of  Death)  expire;  and  I  am  hastening  to  obey 
this  Melancholy  call,  after  having  just  buried 
a  Brother  who  was  the  intimate  companion  of 
my  youth,  and  the  friend  of  my  ripened  age. 
This  journey  of  mine  then,  100  miles,  in  the 
disordered  frame  of  my  body,  will,  I  am  per- 
suaded, unfit  me  for  the  intended  trip  to  Phila- 
delphia/' 

But  Washington,  though  he  knew  it  not,  was 
then  approaching  the  verge  of  his  third  cycle 

128 


THE  OBSERVATIONS 

of  illustrious  service  rendered  to  his  country 
— "the  country  he  assembled  out  of  chaos. " 

Madison  writing  to  Jefferson,  the.n  in  Paris, 
on  Tuesday,  the  15th  of  May,  happily  re- 
corded the  fact  that  Washington,  true  to 
his  life  record,  was  on  the  ground  when  he 
should  have  been :  l  i  Monday  last  was  the  day 
for  the  meeting  of  the  Convention.  The  num- 
ber as  yet  assembled  is  but  small.  Among  the 
few  is  General  Washington  who  arrived  on 
Sunday  evening,  amidst  the  acclamations  of 
the  people,  as  well  as  more  sober  marks  of  the 
affection  and  veneration  which  continue  to  be 
felt  for  his  character. " 

But  a  quorum  of  lesser  men  did  not  appear 
until  Friday  May  25th.  On  that  day  nine 
States  were  represented  by  twenty-nine  dele- 
gates among  whom  was  Charles  Pinckney  on 
whose  motion  a  committee  was  appointed,  of 
which  he  was  one,  to  prepare  standing  rules 
and  orders.  The  only  other  business  was  the 
election  of  Washington  as  President  and  Ma- 
jor William  Jackson  as  Secretary.  On  Mon- 
day May  28th  the  Convention  next  met  when 
"Mr.  Wythe,  from  the  committee  for  prepar- 
ing rules  made  a  report  which  employed  the  de- 

129 


THE  PINCKNEY  DRAUGHT 

liberations  of  this  day."  Tuesday  May  29th 
was  the  great  day  when  Randolph  ' '  opened  the 
main  business"  and  presented  the  Virginia 
resolutions,  and  Pinckney  "laid  before  the 
House  the  draught  of  a  Federal  Government." 
These  were  not  days  to  be  easily  confounded. 
But  between  the  presentation  of  the  draught 
to  the  Convention  and  the  writing  of  the  title 
for  the  printer  in  New  York  four  months  had 
elapsed  crowded  with  labor  and  excitement, 
and  Pinckney  had  forgotten  the  date  of  the 
most  eventful  day  of  his  life.  The  error  of 
this  date  means  a  great  deal. 

In  his  letter  to  the  Secretary  of  State  cover- 
ing the  draught  in  the  Department,  Pinckney 
says  that  he  has  then  four  or  five  draughts 
of  the  Constitution  in  his  possession.  It  is 
certain  that  the  draught  in  the  Department 
conforms  much  more  closely  to  the  draught 
which  he  presented  to  the  Convention  than 
to  the  draught  which  he  describes  in  the  Obser- 
vations. If  we  consider  the  facts  established 
(as  we  must)  that  the  Observations  were  writ- 
ten before  the  assembling  of  the1  Convention, 
that  they  were  written  many  months  before 
their  publication,  that  they  were  not  examined 

130 


THE  OBSERVATIONS 

or  revised  when  they  were  published,  it  is 
easily  within  the  range  of  possibilities,  if  not 
of  probabilities,  that  the  draught  which  formed 
the  "text  of  the  discourse"  was  one  of  the  four 
or  five  which  Pinckney  had  drawn  at  various 
times  and  was  not  the  one  which  he  finally  sub- 
mitted to  the  Convention. 

If  the  Observations  were  what  they  pretend 
to  be  the  text  of  a  real  speech  actually  spoken 
at  the  time  when  Pinckney  was  about  to  pre- 
sent his  draught  to  the  Convention  they  would 
be  very  good  secondary  evidence  of  the  con- 
tents of  the  paper  which  he  held  in  his  hand 
and  which  he  then  and  there  presented,  and 
thereby  parted  company  with.  But  a  speech 
which  was  never  spoken  to  suppositional  audi- 
tors who  never  heard  it,  is  not  a  public  decla- 
ration of  the  contents  of  another  paper.  The 
Observations  are  not  a  speech  because  they 
are  cast  in  the  form  of  a  speech.  They 
are  simply  a  paper  which  may  have  been  writ- 
ten in  Charleston  before  the  assembling  of  the 
Convention,  or  (possibly)  in  New  York  after 
the  Convention  had  been  dissolved,  and  when- 
ever written  Pinckney  may  have  had  before 
him  another  of  the  four  or  five  constitutions 

131 


THE  PINCKNEY  DRAUGHT 

which  he  had  draughted.  With  the  uncovering 
of  the  fact  that  this  paper  was  not  contempo- 
raneous, and  that  it  did  not  necessarily  refer 
to  the  particular  copy  of  the  draught  which 
Pinckney  presented  to  the  Convention  on  the 
29th  of  May,  the  supposed  value  of  the  Obser- 
vations as  evidence  to  impeach  the  integrity 
of  the  draught  in  the  State  Department  is 
blown  to  pieces. 

If  this  were  a  suit  between  Madison  and 
Pinckney  it  might  be  held  that  Pinckney  would 
be  estopped  from  questioning  the  veracity  of 
the  paper  which  he  wrote  and  made  public,  or 
the  actuality  of  the  facts  which  it  sets  forth. 
But  an  estoppel  which  in  the  words  of  Coke, 
"concludeth  a  man  to  alleage  the  truth"  does 
not  extend  to  the  student  of  Constitutional  his- 
tory. He  is  not  a  party  to  that  record  and  is 
at  liberty  to  use  it  for  what  it  may  be  worth 
against  Pinckney  or  for  Pinckney,  to  over- 
throw the  draught  or  to  substantiate  the 
draught — to  use  it  in  any  way  which  will  tend 
to  clear  the  situation  from  error,  and  authen- 
ticate the  true  history  of  the  Constitution. 

Madison  in  his  "Note  to  the  Plan"  re- 
garded article  VIII  as  "remarkable  also  for 

132 


THE  OBSEKVATIONS 

the  circumstance  that  whilst  it  specifies  the 
functions  of  the  President,  no  provision  is 
contained  in  the  paper  for  the  election  of  such 
an  officer."  The  plain  unquestionable  pur- 
pose of  Madison  when  so  writing  was  to  im- 
press upon  the  American  mind  the  improb- 
ability, the  almost  impossibility,  of  Pinckney's 
having  neglected  to  provide  for  the  election  of 
the  President  while  actually  establishing  the 
office  and  defining  the  functions  of  the  officer ; 
and  hence  that  the  paper  which  is  so  remark- 
able for  the  omission  cannot  be  a  true  copy  of 
the  one  presented  to  the  Convention;  and  the 
inevitable  inference  from  this  is  that  the  real 
draught,  the  one  presented  to  the  Convention 
on  the  29th  of  May  contained  and  must  have 
contained,  and  could  not  have  overlooked  the 
needed  provision  declaring  how  the  President 
should  be  chosen. 

The  choosing  of  the  President  by  means  of 
electoral  colleges  in  which  each  State  should 
have  a  proportionate  power  equal  to  its  total 
representation  in  the  two  houses  of  Congress 
was  one  of  the  notable  compromises  between 
the  large  and  small  States ;  and  what  Madison 
says  must  excite  the  curiosity  of  the  Constitu- 

133 


THE  PINCKNEY  DBAUGHT 

tional  student  to  know  in  what  manner  Pinck- 
ney provided  in  his  draught  for  the  choosing 
of  the  President  and  whether  he  attempted  a 
compromise.  The  original  draught  is  lost; 
but  here  Madison  appears  with  the  Observa- 
tions which  he  fortunately  saw  in  1787  and 
which  he  fortunately  remembered  in  1831  and 
which,  remembering,  he  brought  to  light  and 
made  an  authority;  and  these  Observations, 
according  to  Madison,  presumptively  set  forth 
what  the  original  draught  contained  so  fully 
and  accurately  that  upon  the  faith  of  them  we 
can  and  must  reject  the  copy  of  the  draught 
which  Pinckney  produced  and  placed  in  the 
State  Department.  Therefore  we  may  turn  to 
the  Observations  with  unusual  interest  to 
ascertain  whether  Pinckney  provided,  and  in 
what  manner  he  provided,  for  the  choosing  of 
the  President. 

We  find  that  the  Observations  are  as  silent 
as  the  draught  in  the  State  Department. 
They  are  not  more  silent  however.  If  the 
Observations  said  nothing  and  were  abso- 
lutely silent  on  the  subject  of  the  President,  it 
might  be  a  casual  oversight  of  the  writer. 
But  the  Observations  agree  with  article  VIII; 

134 


THE  OBSEEVATIONS 

both,  recognize  the  Executive  as  vested  in  one 
person;  both  limit  his  term  of  office,  the  one 
to  seven,  the  other  to — years;  both  expressly 
declare  that  he  shall  be  re-eligible;  both  are 
silent  as  to  the  means  by  which  he  shall  be 
chosen.  The  Observations  here  are  little  more 
than  a  paraphrase  of  article  VIII.  Madison 
regarded  the  omission  to  provide  for  so  vitally 
important  a  thing  as  the  choosing  of  the  Presi- 
dent as  "remarkable";  but  the  more  remark- 
able the  omission,  the  more  significant  the 
coincidence. 

The  explanation  of  Pinckney's  conduct  and 
of  the  contradictions  between  his  statements 
in  the  Observations  and  the  facts  appearing 
on  the  records  of  the  Convention,  including  in 
the  term  the  Madison  Journal  and  the  Yates 
Minutes  is,  I  think,  the  following: 

The  first  business  day  of  the  Convention, 
probably,  was  the  most  impressive  day  of  all 
its  sittings.  There  were  less  than  forty  dele- 
gates present  but  among  them  were  the  most 
distinguished  men  of  the  country ;  Washington, 
Hamilton,  Eufus  King,  David  Brearly,  both 
Eobert  and  Gouverneur  Morris,  George  Bead, 
George  Mason,  George  Wythe,  John  Eutledge, 

135 


THE  PINCKNEY  DKAUGHT 

John  Dickinson  and  Elbridge  Gerry.  A  pain- 
ful anxiety  existed  concerning  everything 
which  lay  before  them — the  method  of  pro- 
cedure, the  specific  subjects  to  be  considered, 
the  prejudices  of  the  different  States,  the 
views  and  plans  and  projects  of  the  different 
members.  Eandolph,  as  heretofore  has  been 
said,  opened  the  great  business  which  was  to 
result  either  in  the  formation  of  a  National 
government  or  in  the  dissolution  of  the  feeble 
Confederation  which  existed,  by  the  presen- 
tation of  the  abstract  propositions  which  the 
delegates  from  Virginia  had  formulated  for 
the  consideration  of  the  Convention,  and  by  a 
masterly  address  in  which  he  set  forth  the 
perils  of  the  hour  and  the  difficulties  to  be 
overcome.  When  he  concluded  his  solemn  and 
philosophical  exposition  of  the  impending 
problems  the  Convention  adjourned  as  well  it 
might. 

Pinckney  must  have  been  impressed  by  this. 
He  had  studied  the  field  long  and  intelligently ; 
but  there  were  now  waters  before  him  which 
were  beyond  his  depth — difficulties  which  he 
had  not  considered;  prejudices  and  jealousies 

136 


THE  OBSERVATIONS 

for  which  he  had  formulated  no  compromise. 
It  was  not  the  time  for  the  man  believed 
to  be  the  youngest  member  to  harangue  the 
Convention  on  his  scheme  for  a  new  gov- 
ernment. 

Pinckney  unquestionably  had  prepared  a 
written  speech  in  his  study,  in  Charleston.  It 
was  his  strategic  purpose  to  deliver  the  speech 
at  the  opening  of  the  Convention  and  draw 
forth  expressions  of  opinion  concerning  his 
scheme  for  a  National  government,  after 
which  he  would  modify  his  plan  and  when 
modified  to  suit  himself  or  to  suit  a  majority 
of  the  members,  he  would  present  it.  But 
when  the  time  came  to  speak  he  saw  that  the 
Convention  was  in  no  humor  to  listen  to  an 
oration  about  his  plan,  and  that  the  business 
before  them  would  be  the  consideration  and 
discussion  of  abstract  propositions  one  by  one 
as  set  forth  in  the  Virginia  resolutions,  and 
that  no  plan  would  be  considered  until  the 
delegates  should  learn  by  intelligent  discus- 
sion what  they  wanted  to  formulate.  He 
therefore  wisely  reversed  his  strategy,  with- 
holding the  speech  but  presenting  the  draught, 

137 


THE  PINCKNEY  DRAUGHT 

thereby  placing  himself  on  the  record  and 
establishing  what  in  patent  law  would  be 
called  priority  of  invention. 

After  the  great  work  was  done  and  the  Con- 
stitution had  gone  forth  to  the  world  Pinck- 
ney  knew  that  his  draught  was  buried  in  the 
secrecy  of  the  proceedings.  He  too,  like  many 
another  effusive  young  man,  may  have 
thought  his  speech  too  good  to  be  lost.  Cer- 
tainly he  could  not  resist  the  temptation  of 
revealing  what  he  had  written  and  of  record- 
ing the  great  part  he  had  played  among  the 
eminent  actors  in  the  Convention.  He  avoid- 
ed violating  the  pledge  of  secrecy  by  revealing 
no  act  or  proceeding  of  the  Convention,  not 
even  that  his  plan  had  been  presented  and  re- 
ferred. And  it  is  fair  to  say  that  while  he 
acted  like  a  boy,  he  also  gave  out  the  full 
record  in  a  manly  way.  The  absurdities  in  ) 
his  draught,  as  some  of  his  provisions  must 
have  seemed  to  many  intelligent  men,  were  set 
forth;  the  provisions  which  failed  were  set 
forth;  the  propositions  which  he  himself  had 
abandoned  and  opposed  were  set  forth. 
There  was  no  tampering  with  the  record. 
There  are  passages  in  some  of  his  imperfectly 

138 


THE  OBSERVATIONS 

reported  speeches  in  the  Convention  which 
bear  some  resemblance  to  his  discursive  rhe- 
torical flights  in  the  Observations,  and  these 
he  may  have  thought  justified  the  title  with 
which  he  prefaced  the  publication.  The  two 
lines  on  the  title  page,  "  Delivered  at  different 
Times  in  the  course  of  their  Discussions, "  are 
in  very  small  type  and  appear  much  as  if  they 
had  been  crowded  into  a  printer's  proof — as 
if  they  had  been  an  afterthought.  But  how- 
ever that  may  be  one  thing  is  certain,  that  the 
speech  setting  forth  the  contents  of  his  plan 
was  never  made  in  the  Convention. 

The  Observations  sustain  the  draught  in  the 
State  Department  in  matters  of  substance,  but 
not  in  order  and  arrangement.  The  Observa- 
tions also  allude  to  provisions  which  are  not  in 
the  draught  in  the  State  Department,  provi- 
sions which  may  or  may  not  have  been  in  the 
draught  which  was  presented  to  the  Conven- 
tion; and  these  I  shall  subsequently  examine. 
As  to  the  variance  in  order  and  arrangement 
there  are  two  things  which  should  be  consid- 
ered: First:  as  a  matter  of  antiquarian  re- 
search it  would  be  interesting  and  satisfactory 
to  ascertain  that  the  one  draught  was  a  fac- 

139 


THE  PINCKNEY  DRAUGHT 

simile  or  exact  duplicate  of  the  other;  but 
where  the  purpose  of  the  inquiry  (as  in  this 
case)  is  to  ascertain  what  contributions  the 
draught  of  Pinckney  made  to  the  Constitution 
of  the  United  States,  it  is  wholly  immaterial 
whether  one  provision  followed  another  or 
preceded  it,  or  was  far  removed  from  it. 
The  second  thing  to  be  remembered  is  that  the 
draught  of  the  Committee  of  Detail,  so  far  as 
it  agrees  in  order  and  arrangement  with  the 
draught  in  the  State  Department  furnishes  us 
with  presumptive  evidence  of  the  order  and 
arrangement  in  the  draught  which  was  pre- 
sented to  the  Convention.  A  comparison  of 
the  two  will  show  that  the  variances  are  so 
trivial  that  they  are  not  worthy  of  further  con- 
sideration. 

As  we  have  seen  (chapter  VI)  Madison  did 
not  cite  the  Observations  in  the  "Note  of  Mr. 
Madison  to  the  plan  of  Charles  Pinckney, " 
but  did  prepare  a  footnote  for  the  Note  to  be 
appended  to  and  published  with  it  by  his 
future  editor  who  he  then  believed  would  be 
Mrs.  Madison.  Why  he  did  not  cite  or  set 
forth  in  his  own  Note  the  "striking  discrep- 
ancies'* set  forth  in  the  footnote,  but  planned 

140 


THE  OBSERVATIONS 

and  arranged  that  they  should  be  brought  be- 
fore the  public  by  his  editor  has  seemed  inex- 
plicable hitherto.  The  reason  is  now  plain — 
he  did  not  wish  to  assume  the  responsibility 
of  citing  the  pamphlet  of  Pinckney  because  he 
knew  that  it  consisted  of  a  speech  which  was 
never  made. 

Madison  cited  the  Observations  and  the 
eighth  article  and  the  fifth  article  of  Pinck- 
ney 's  draught  to  secure  its  condemnation;  but 
of  each  he  might  say  as  Balak  the  son  of  Zip- 
por  said  to  the  prophet  of  old,  "I  took  thee  to 
curse  mine  enemies  and  behold  thou  hast 
blessed  them! "  He  hunted  for  the  Observa- 
tions; he  found  them;  he  brought  them  to  the 
knowledge  of  men,  he  appealed  to  them,  he 
made  them  an  authority  by  which  Pinckney 
should  be  judged  out  of  his  own  mouth;  and 
lo !  they  furnish  the  strongest  confirmation  of 
the  verity  of  the  draught  which  he  attacked. 

The  Observations  seem  to  have  been  a  fate- 
ful thing,  fatal  to  whichever  party  relied 
upon  them.  Madison  exhumed  them  and  be- 
lieved that  they  would  destroy  the  pretensions 
of  Pinckney  and  vindicate  himself — and  they 
have  but  demonstrated  the  superficiality  of  his 

141 


THE  PINCKNEY  DRAUGHT 

own  investigation  and  the  baselessness  of  his 
deductions.  Pinckney  fearing  that  the  part 
which  he  had  played  in  the  Convention  would 
never  be  known,  that  his  great  contribution  to 
the  Constitution  might  never  receive  so  much 
as  the  notice  of  men,  impelled  by  his  boyish 
egoism  and  by  what  Madison  called  with  ref- 
erence to  another  contemporaneous  publica- 
tion, "his  appetite  for  expected  praise, "  im- 
properly laid  them  before  the  world — and  they 
have  done  more  than  any  other  one  thing  to 
smirch  his  good  name  and  bury  in  oblivion  the 
great  work  of  his  life. 


142 


CHAPTER  X 

THE  SILENCE  OF  MADISON 

UP  to  this  point  the  draught  in  the  State 
Department  has  been  considered  pre- 
cisely as  Madison  desired  it  should  be  consid- 
ered; that  is  to  say  upon  his  objections.  The 
inquiry  moreover  has  been  confined  to  the 
final  indictment  which  he  drew  up,  to-wit,  the 
"Note  of  Mr.  Madison  to  the  Plan  of  Charles 
Pinckney,"  and  to  the  evidence  which  he  ad- 
duced to  sustain  it,  to-wit  Pinckney 's  Obser- 
vations and  letter  and  Madison's  Journal  of 
the  Convention.  But  there  is  another  chapter 
which  must  be  considered,  a  chapter  of  facts 
and  circumstances  forming  an  unseen  part  of 
the  strategy  which  his  cautious  policy  sup- 
plied. 

In  his  letters  to  Sparks  and  the  others  as 
in  the  final  "Note,"  there  is  a  studious  com- 
parison instituted  between  the  draught  in  the 
State  Department  and  the  Constitution  itself. 
There  is  also  an  argument  implied  that  the 

143 


THE  PINCKNEY  DRAUGHT 

draught  in  the  Department  cannot  possibly  be 
identical  with  the  draught  presented  to  the 
Convention  because  it  contains  some  provi- 
sions which  Pinckney  opposed  in  the  Conven- 
tion. A  student  whose  inquiries  were  limited 
to  early  editions  of  Madison's  Writings  might 
draw  from  them  two  extenuating  inferences, 
the  first  of  which  would  be  that  the  weakened 
memory  of  age  and  infirmity  had  failed  to 
bring  before  Madison  the  proper  instrument 
for  comparison,  the  draught  of  the  Committee 
of  Detail ;  the  second  that  he  had  never  heard 
of  Pinckney 's  letter  to  the  Secretary  of  State 
and  knew  not  that  Pinckney  had  notified  the 
Secretary  that  the  copy  which  he  sent  was  not 
a  literal  reproduction  of  the  lost  draught  and 
tha,  it,  like  the  original,  contained  provisions 
which  on  further  reflection  he  had  opposed  in 
the  Convention. 

In  the  spring  of  1830  Mr.  Jared  Sparks 
passed  a  week  with  Madison  at  Montpelier 
and  on  his  return  to  Washington  sent  to  him 
the  following  letter : 

"  WASHINGTON,  May  5th,  1830. 
"  Since  my  return  I  have  conversed  with 
144 


THE  SILENCE  OF  'MADISON 

Mr.  Adams  concerning  Charles  Pinckney 's 
draught  of  a  constitution.  He  says  it  was  fur- 
nished by  Mr.  Pinckney,  and  that  he  has  never 
been  able  to  hear  of  another  copy.  It  was 
accompanied  by  a  long  letter  (written  in  1819) 
now  in  the  Department  of  State,  in  which  Mr. 
Pinckney  claims  to  himself  great  merit  for 
the  part  he  took  in  framing  the  constitution. 
A  copy  of  this  letter  may  doubtless  be  pro- 
cured from  Mr.  Brent,  should  you  desire  to 
see  it.  Mr.  Adams  mentioned  the  draught 
once  to  Mr.  Eufus  King,  who  said  he  remem- 
bered such  a  draught,  but  that  it  went  to  a 
committee  with  other  papers,  and  was  never 
heard  of  afterwards.  Mr.  King's  views  of 
the  subject,  as  far  as  I  could  collect  them  from 
Mr.  Adams,  were  precisely  such  as  you  ex- 
pressed. " 

Here  it  may  be  noted  that  what  Mr.  Adams 
heard  from  Mr.  King  is  recorded  in  his 
Memoirs,  May  4,  1830,  Vol.  VIII,  p.  225.  It 
is  only  what  Sparks  reported  to  Madison. 
Mr.  King  had  not  seen  the  draught,  and  had 
not  heard  any  one  narrate  what  its  provisions 
were.  Indeed  his  doubts  and  suspicions  seem 

145 


THE  PINCKNEY  DKAUGHT 

to  have  been  founded  on  no  other  fact  than 
that  he  did  not  hear  it  talked  about.  Like 
Madison,  he  was  a  witness  who  could  testify 
to  nothing,  not  even  to  hearsay. 

On  the  24th  of  May,  1831,  Mr.  Sparks,  who 
was  then  at  work  on  his  life  of  Gouveneur 
Morris,  again  wrote  to  Madison. 

"BOSTON,  May  24,  1831. 
"In  touching  on  the  Convention,  I  shall 
state  the  matter  relating  to  Mr.  Pinckney's 
draught,  as  I  have  heard  it  from  you,  and 
from  Mr.  Adams  as  reported  to  him  by  Mr. 
King.  Justice  and  truth  seem  to  me  to  re- 
quire this  exposition.  I  shall  write  to  Charles- 
ton, and  endeavor  to  have  the  draught  in- 
spected, which  was  left  by  Mr.  Pinckney. 
Your  explanation,  that  he  probably  added  par- 
ticulars as  they  arose  in  debate,  and  at  last 
forgot  which  was  original  and  what  super- 
added,  is  the  only  plausible  way  of  accounting 
for  the  mystery,  and  it  may  pass  for  what  it  is 
worth.  Should  anything  occur  to  you,  which 
you  may  think  proper  to  communicate  to  me 
on  the  subject,  I  shall  be  well  pleased  to  re- 
ceive it." 

146 


THE  SILENCE  OF  MADISON 

Madison  felt  so  solicitous  about  the  inquiry 
in  Charleston  that  on  the  21st  of  June  he 
wrote  to  Sparks,  asking  to  be  informed  of  the 
result  "as  soon  as  it  is  ascertained." 

But  on  the  16th  of  June  Sparks  had  written 
to  Madison  the  following  letter  which  could 
not  have  reached  him  when  he  wrote  on  the 
21st.  • 

"  BOSTON,  June  16th,  1831. 

"I  have  procured  from  the  Department  of 
State  a  copy  of  the  letter  from  Mr.  Charles 
Pinckney  to  Mr.  Adams,  when  he  sent  his 
draught  for  publication.  This  letter  is  so 
conclusive  on  the  subject  that  I  do  not  think  it 
necessary  to  make  any  further  inquiry.  It  is 
evident,  that  the  draught,  which  he  forwarded, 
was  a  compilation  made  at  the  time  from  loose 
sketches  and  notes.  The  letter  should  have 
been  printed  in  connexion  with  the  draught.  I 
imagine  Mr.  Pinckney  expected  it.  He  does 
not  pretend  that  this  draught  was  absolutely 
the  one  he  handed  into  the  Convention.  He 
only  ' believes'  it  was  the  one,  but  is  not  cer- 
tain. 

"Should  you  have  leisure,  I  beg  you  will 
favor  me  with  your  views  of  this  letter.  It 

147 


THE  PINCKNEY  DRAUGHT 

touches  upon  several  matters  respecting  the 
history  and  progress  of  the  Convention.  Do 
these  accord  with  your  recollection?  I  would 
not  weary  or  trouble  you,  but  when  you  recol- 
lect that  there  is  no  other  fountain  to  which 
I  can  go  for  information,  I  trust  you  will  par- 
don my  importunity. ' 9 

When  Sparks  wrote  his  hasty  letter  of  June 
16th  he  was  evidently  writing  under  two  mis- 
apprehensions. The  first  was  that  he  sup- 
posed the  question  involved  was  whether  the 
draught  on  file  was  an  exact  copy  of  the  lost 
original;  the  second  was  that  its  verity  de- 
pended entirely  on  Pinckney's  accompanying 
letter.  To  his  inquiry  what  did  Madison 
think  of  that  letter,  Madison  made  no  reply. 

But  in  the  course  of  the  next  five  months 
Sparks  cleared  his  mind  of  the  above  misap- 
prehensions and  freed  himself  from  the 
authority  of  Madison's  opinion;  and  his 
strong  and  well  trained  mind  analysed  the 
facts  involved  and  grasped  the  real  problem 
of  the  case.  This  analysis  and  this  problem 
he  set  clearly  before  Madison  in  the  following 
letter. 

148 


THE  SILENCE  OF  MADISON 

"BOSTON,  November  14th,  1831. 

"My  mind  has  got  into  a  new  perplexity 
about  Pinckney's  Draught  of  a  Constitution. 
By  a  rigid  comparison  of  that  instrument  with 
a  Draught  of  the  Committee  reported  August 
6th  they  are  proved  to  be  essentially,  and 
almost  identically,  the  same  thing.  It  is  im- 
possible to  resist  the  conviction,  that  they 
proceeded  from  one  and  the  same  source. 

"This  being  established,  the  only  question 
is,  whether  it  originated  with  the  committee, 
or  with  Mr.  Pinckney,  and  I  confess  that 
judging  only  from  the  face  of  the  thing  my  im- 
pressions incline  to  the  latter.  Here  are  my 
reasons. 

"1.  All  the  papers  referred  to  the  commit- 
tee were  Randolph's  Eesolutions  as  amended, 
and  Patterson's  Eesolutions  and  Pinckney 's 
Draught  without  having  been  altered  or  con- 
sidered. The  committee  had  them  in  hand 
nine  days.  Their  Report  bears  no  resem- 
blance in  form  to  either  of  the  sets  of  resolu- 
tions, and  contains  several  important  provi- 
sions not  found  in  either  of  them.  Is  it  prob- 
able that  they  would  have  deserted  these, 
particularly  the  former,  which  had  been  exam- 

149 


THE  PINCKNEY  DEAUGHT 

ined  seriatim  in  the  convention,  and  struck  out 
an  entirely  new  scheme  (in  its  form)  of  which 
no  hints  had  been  given  in  the  debates! 

"2.  The  language  and  arrangement  of  the 
Eeport  are  an  improvement  upon  Pinckney's 
Draught.  Negligent  expressions  are  correct- 
ed, words  changed  and  sentences  broken  for 
the  better.  In  short,  I  think  any  person  ex- 
amining the  two  for  the  first  time,  without  a 
knowledge  of  circumstances,  or  of  the  bearing 
of  the  question,  would  pronounce  the  Com- 
mittee's Eeport  to  be  a  copy  of  the  Draught, 
with  amendments  in  style,  and  a  few  unim- 
portant additions. 

"3.  If  this  conclusion  be  not  sound,  it  will 
follow  that  Mr.  Pinckney  sketched  his  draught 
from  the  Committee's  Eeport,  and  in  so  artful 
a  manner  as  to  make  it  seem  the  original,  a 
suspicion  I  suppose  not  to  be  admitted  against 
a  member  of  the  Convention  for  forming  the 
Constitution  of  the  United  States. 

' '  Will  you  have  the  goodness  to  let  me  know 
your  opinion  ?  If  I  am  running  upon  a  wrong 
track  I  should  be  glad  to  get  out  of  it,  for  I 
like  not  devious  ways,  and  would  fain  have 
light  rather  than  darkness. 

150 


THE  SILENCE  OF  MADISON 

"P.  S. — You  may  be  assured,  Sir,  that  I 
have  no  intention  of  printing  anything  on  this 
subject,  nor  of  using  your  authority  in  any 
manner  respecting  it.  I  am  aware  of  the  deli- 
cate situation  in  which  such  a  step  would 
place  you,  and  you  may  rely  upon  my  discre- 
tion. I  am  greatly  puzzled,  however,  in 
respect  to  the  extraordinary  coincidence  be- 
tween the  two  draughts.  Notwithstanding 
my  reasons  above  given,  I  cannot  account  for 
the  committee's  following  any  draught  so 
servilely,  especially  with  Randolph's  Resolu- 
tions before  them,  and  Randolph  himself  one 
of  their  number. — I  doubt  whether  any  clear 
light  can  be  gained,  till  Pinckney's  original 
draught  shall  be  found,  which  is  probably 
among  the  papers  of  one  of  the  committee.  It 
seems  to  me  that  your  secretary  of  the  conven- 
tion was  a  very  stupid  secretary,  not  to  take 
care  of  these  things  better,  and  to  make  a  bet- 
ter Journal  than  the  dry  bones  that  now  go  by 
that  name." 

This  letter  set  forth  the  real  elements  of  the 
case,  elements  incontrovertible  and  absolutely 
certain — that  Pinckney's  draught  was  re- 

151 


THE  PINCKNEY  DRAUGHT 

f erred  to  the  Committee  of  Detail ;  that  it  was 
never  considered  in  the  Convention;  that  the 
period  within  which  the  Committee  framed 
their  draught  was  a  brief  one ;  that  the  Com- 
mittee 's  draught  bears  no  resemblance  in  form 
to  the  resolutions  of  the  Convention  and  con- 
tains provisions  not  found  in  them;  that  the 
Committee  so  departed  from  the  resolutions, 
though  Randolph  himself  was  one  of  their 
number,  and  struck  out  an  entirely  new 
scheme  in  form  of  which  no  hint  had  been 
given  in  the  debates  and  that  the  Committee's 
draught  in  form,  language  and  arrangement 
appears  to  be  a  copy  of  Pinckney's  with 
amendments  and  additions. 

From  these  sure  premises  Sparks  deduced 
two  alternative  conclusions;  "I  think  any  per- 
son examining  the  two  [draughts]  for  the  first 
time  without  a  knowledge  of  the  circumstances 
or  of  the  bearing  of  the  question  would  pro- 
nounce the  Committee's  report  to  be  a  copy  of 
the  draught  with  amendments  in  style  and  a 
few  unimportant  additions,"  "or  that  Mr. 
Pinckney  sketched  Ms  draught  from  the  Com- 
mittee's, and  in  so  artful  a  manner  as  to  make 
it  seem  the  original,  a  suspicion  I  suppose  not 

152 


THE  SILENCE  OF  MADISON 

to  be  admitted  against  a  member  of  the  con- 
vention." 

In  the  second  clause  of  the  latter  alterna- 
tive Sparks  with  admirable  sagacity  applied 
the  most  delicate  test  that  could  be  applied 
to  the  matter.  He  brings  the  dilemma  down 
to  this :  The  Committee  must  have  used  Pinck- 
ney  's  draught  or  Pinckney  must  have  sketched 
his  draught  from  the  Committee's;  and  more 
than  that,  he  must  have  sketched  it  "in  so 
artful  a  manner  as  to  make  it  seem  the 
original." 

When  one  instrument  is  fashioned  after  an- 
other the  natural  and  even  unconscious  action 
of  the  mind  is  to  correct  and  improve.  It  is 
a  going  forward  toward  a  desirable  result. 
To  fashion  the  second  instrument  after  the 
first  but  in  such  a  manner  that  in  many  details 
there  would  be  an  unfailing  inferiority  would 
be  a  going  backward.  This  inferiority  in 
detail  runs  through  the  Pinckney  draught  as 
has  repeatedly  been  shown  before.  When 
Sparks  wrote  the  word  "artful"  he  used  the 
right  word,  the  word  which  controlled  the  situ- 
ation— "in  so  artful  a  manner  as  to  make  it 
seem  the  original"  most  accurately  defines 

153 


THE  PINCKNEY  DEAUGHT 

what  Pinckney  did  in  Charleston  in  1818  if  he 
then  fabricated  a  new  draught. 

Of  course  such  a  fabrication  was  possible 
but  it  would  have  required  a  literary  forger 
with  a  genius  for  literary  forgery  to  have 
taken  the  Committee's  draught  and  given 
these  artless  imperfections — these  delicate 
touches  of  inferiority  to  the  copy  for  the  State 
Department. 

To  the  specific  charge  that  Pinckney  must 
have  sketched  his  draught  "in  so  artful  a 
manner  as  to  make  it  seem  the  original"  if  it 
was  not  what  he  had  represented  it  to  be, 
Madison  made  no  reply.  Sparks  had  nar- 
rowed the  issue  to  this,  "Did  the  Committee 
follow  Pinckney 's  draught  or  did  Pinckney 
use  the  Committee's!"  But  Madison  evaded 
the  issue.  Sparks  had  shown  that  the  Com- 
mittee did  not  confine  themselves  to  results 
arrived  at  after  discussion  in  the  Convention; 
but  that  they  had  incorporated  in  their 
draught  "important  provisions  not  found  in 
either"  set  of  resolutions,  and  he  called  Madi- 
son's attention  "to  the  extraordinary  coinci- 
dence hetween  the  two  draughts;"  and  he 
added  that  he  could  not ' '  account  for  the  Com- 

154 


THE  SILENCE  OF  MADISON 

mittee  following  any  draught  so  servilely,  es- 
pecially with  Randolph's  resolutions  before 
them,  and  Randolph  himself  one  of  their 
number."  It  was  for  Madison  then  to  meet 
this  issue  and  show  definitely  where  the  Com- 
mittee got  the  many  new  provisions  of  their 
draught,  important  and  unimportant,  if 
they  did  not  get  them  from  the  Pinckney 
draught. 

On  the  25th  of  November,  1831,  Madison  re- 
plied at  length  to  Sparks'  letter  but  he  said 
not  a  word  about  the  draught  of  the  Commit- 
tee or  of  Pinckney 's  letter  to  the  Secretary  of 
State.  His  answer  was  in  effect,  "  Impos- 
sible !" 

Sparks  did  not  acknowledge  the  receipt  of 
the  letter  until  the  17th  of  January,  1832,  and 
then  the  acknowledgment  was  called  out  by  a 
letter  from  Madison  of  January  7th.  He 
yielded  a  reluctant  assent,  manifestly  in  def- 
erence to  Madison,  that  "this  letter  seems  to 
me  conclusive,  but"  (he  immediately  adds),  "I 
am  still  a  good  deal  at  a  loss  about  the  first 
draught  of  the  Committee.  The  history  of 
the  composition  of  the  draught  would  be  a 
curious  item  in  the  proceedings  of  the  Conven- 

155 


THE  PINCKNEY  DRAUGHT 

tion."  Here  Sparks  again  put  his  finger  on 
one  of  the  things  that  needed  explanation, 
"the  composition  of  the  draught/'  His  sa- 
gacious mind  grasped  the  fact  that  the  struc- 
ture of  the  draught  of  the  Constitution — of 
the  Constitution  itself,  would  indeed  be  a 
"curious  item  in  the  proceedings  of  the  Con- 
vention." It  was  original  work  in  style, 
order,  details  and  arrangement;  "a  curious 
item"  indeed!  Whose  was  the  hand  that 
sketched  it?  When  Sparks  was  so  near  the 
end  of  the  matter  and  on  the  path  which  led  to 
the  end,  it  seems  almost  incredible  that  he  did 
not  take  one  step  forward.  If  he  had  he 
would  have  solved  the  problem  and  dispelled 
the  mystery. 

Madison's  letter  of  November  25th  seems 
to  have  been  written  for  posterity  as  well  as 
for  the  man  to  whom  it  was  sent.  Its  untold 
object  manifestly  was  to  divert  attention  from 
the  draught  of  the  Committee  and  to  direct 
comparison  to  the  Constitution  itself.  Three 
years  later  in  his  letter  to  Judge  Duer  he 
reiterated  what  he  had  said  to  Sparks,  and 
again  he  said  nothing  upon  the  point  which 
Sparks  had  plainly  placed  before  him.  Final- 

156 


THE  SILENCE  OF  MADISON 

ly  when  he  prepared  his  Note  to  the  Plan,  he 
for  a  third  time,  was  silent  on  the  primary 
issue  in  the  case,  Did  the  Committee  follow 
Pinckney's  draught  or  did  Pinckney  surrep- 
titiously use  the  Committee's? 

This  silence  of  Madison's  is  a  most  curious 
instance  of  his  sagacious  and  adroit  manage- 
ment. It  was  not  his  business  to  direct  atten- 
tion to  this  troublesome  final  issue  and  he  did 
not.  The  "Note  of  Mr.  Madison  to  the  Plan 
of  Charles  Pinckney "  would  be  published;  the 
letters  of  Sparks  to  himself  might  never  see 
the  light.  Indeed  I  can  give  this  tribute  to 
his  adroitness — that  this  book  was  written  in 
the  belief  that  Madison  never  knew  of  Pinck- 
ney 's  letter  to  the  Secretary  of  State,  and 
that  his  weakened  mind  had  overlooked  the 
draught  of  the  Committee  of  Detail;  and  it 
was  not  till  the  book  was  finished  that  I  found 
the  letters  of  Sparks  above  quoted  and  was 
compelled  thereby  to  supply  this  chapter,  and 
modify  what  I  had  elsewhere  written. 


157 


CHAPTER  XI 

THE  WILSON  AND  RANDOLPH  DRAUGHTS 

INCE  Madison's  time  there  have  been  un- 
Qovered  four  papers  of  which  he  knew 
nothing,  and  they  bring  us  into  an  almost  new 
field  of  inquiry.  These  papers  are  in  the 
handwriting  of  James  Wilson,  Edmund  Ran- 
dolph and  John  Rutledge  (all  members  of  the 
Committee  of  Detail)  and  they  are  draughts 
'(or  sketches  for  draughts)  of  the  Constitu- 
tion. 

The  first  paper,  chronologically,  is  not  a 
draught.  It  was  discovered  by  Professor  Mc- 
Laughlin  and  was  published  by  him  in  the 
Nation  of  April  28,  1904,  and  is  among  the 
Wilson  papers  in  the  library  of  the  Historical 
Society  of  Pennsylvania.  It  is  in  Wilson's 
hand  and  was  found  among  his  papers ;  but  if 
it  was  drawn  up  by  him,  of  which  I  do  not 
feel  sure,  it  is  questionable  whether  it  was 
prepared  by  him  for  the  Convention  of  1787; 
and  it  is  unquestionable  that  it  was  prepared 

158 


WILSON  AND  EANDOLPH  DBAUGHTS 

before  the  adoption  of  the  23  resolutions.  A 
single  article,  or  item  of  the  paper  will  dem» 
onstrate  this  and  its  worthlessness. 

"20.  Means  of  enforcing  and  compelling 
the  Payment  of  the  Quota  of  each  State." 

This  is  all  that  there  is  concerning  the  rock 
upon  which  the  Confederation  was  already 
wrecked — the  dependence  of  the  general  gov- 
ernment upon  the  voluntary  action  of  the  State 
governments  for  revenue.  Wilson  in  1787  was 
too  intelligent  a  statesman  to  even  think  of  re- 
taining this  condition  of  national  dependency, 
and  he  was  too  wise  a  man  to  talk  of  "enforc- 
ing and  compelling"  the  several  States  to  con- 
tribute to  the  national  treasury.  He  may 
have  prepared  the  paper  some  time  before  the 
Convention  was  called,  when  amendments  to 
the  Articles  of  Confederation  were  all  that 
was  anticipated,  but  he  did  not  draw  up  this 
memorandum  after  he  had  become  a  member 
of  the  Committee  of  Detail. 

The  second  paper  in  Wilson's  hand  was  dis- 
covered by  Professor  Jameson  among  the 
Wilson  papers,  and  was  published  by  him  in 

159 


THE  PINCKNEY  DRAUGHT 

the  Annual  Eeport  of  the  Historical  Associa- 
tion, 1902,  Vol.  I.,  p.  151.     This  paper  contains 
the  preamble  of  the  Pinckney  draught,  and, 
consequently,  of  the  draught  of  the  Committee. 
Then  follow   the  first  three   articles  of  the 
Committee's  draught,  with  some  slight  varia- 
tions of  language ;  and  then  under  the  caption 
of  what  should  be  article  4,  come  29  para- 
graphs  containing  provisions   closely   agree- 
ing with  provisions  in  the  Committee's  but 
unarranged    and   incoherent   in   their    order. 
The  second  sheet  of  this  draught  is  unfor- 
tunately  missing;    the    third    sheet    contains 
various     provisions,     following     closely     the 
17th,   18th,   19th,   20th  and   21st  resolutions, 
and,  near  the  end  of  the  paper,  the  provision 
relating  to  the  veto  power  taken  from  the  con- 
stitution   of    Massachusetts    with    the    term 
' '  Governour  of  the  United  States ' '  twice  used. 
The  third  paper  of  Wilson  was  likewise  dis- 
covered by  Professor  Jameson.    Wilson  had 
prepared    the    second    draught    for    himself, 
but  this  third  or  final  draught  manifestly  was 
prepared  for  the  consideration  of  the  other 
members  of  the  Committee.     He  wrote  it  on 
large  foolscap  in  what  is  called  double  col- 

160 


WILSON  AND  RANDOLPH  DRAUGHTS 

umns,  i.  e.  half  of  each  page  was  left  blank  for 
the  comments  and  suggestions  and  amend- 
ments of  the  others.  The  writing  is  in  the 
clear,  neat,  legible  hand,  characteristic  of  Wil- 
son, and  before  the  work  of  revision  began, 
there  was  hardly  a  clerical  error  in  the  paper. 
A  remarkable  contrast  is  stamped  upon  it  con- 
sisting of  43  amendments  in  the  scrawly,  slov- 
enly, bold,  illegible  writing  of  Rutledge,  who 
really  seems  to  have  found  pleasure  in  cutting 
and  slashing  the  careful  work,  the  almost  fem- 
inine neatness  and  niceness  of  Wilson's  pages. 
This  draught  unlike  the  second,  is  divided  into 
articles,  but  unlike  the  Committee's,  is  not 
subdivided  into  sections. 

The  fourth  of  these  recently  discovered 
papers  is  in  the  handwriting  of  Edmund 
Randolph.  Mr.  William  M.  Meigs  in  his 
Growth  of  the  Constitution  has  done  an  ex- 
cellent piece  of  historical  work  in  reproducing 
the  draught  of  Randolph  in  facsimile.  In 
its  interlineations,  erasures,  changes,  omis- 
sions and  marginal  queries  we  see  Randolph's 
doubts  and  perplexities  and  the  incomplete- 
ness of  his  plan  and  the  limitations  of  his 
mental  view  of  a  draught;  and  we  see  this  as 

161 


THE  PINCKNEY  DKAUGHT 

distinctly  as  if  we  stood  beside  him  while  lie 
wrote.  A  more  disheveled  paper  was  never 
reproduced  in  facsimile.  Upon  its  margin 
are  annotations  and  suggestions  of  omitted 
provisions  which  are  in  the  hand  of  Eutledge. 
One  thing,  most  meritorious,  appears — that 
Kandolph  carefully  and  conscientiously  went 
through  the  23  resolutions  and  neglected  no 
instruction  which  they  gave.  But  the  chief 
question  remains  unexplained  as  Sparks  left 
it,  How  came  the  Committee  of  Detail  to 
wander  so  far  from  the  resolutions  "with  the 
resolutions  before  them  and  Eandolph  himself 
one  of  their  number "? 

The  draught  of  Eandolph  begins  in  this 
way: 

"In  the  draught  of  a  fundamental  consti- 
tution two  things  deserve  attention: 

"1.  To  insert  essential  principles  only,  lest 
the  operations  of  government  should  be 
clogged  by  rendering  those  provisions  perma- 
nent and  unalterable  which  ought  to  be  accom- 
modated to  times  and  events,  and 

"2.  To  use  simple  and  precise  language  and 
general  propositions  according  to  the  example 

162 


WILSON  AND  EANDOLPH  DEAUGHTS 

of  the  constitutions  of  the  several  States/' 
Eandolph  then  considers  the  subject  of  a 
preamble  and  sets  forth  a  brief  disquisition  to 
show  that  a  preamble  is  proper  and  what  it 
should  contain.  "We  are  not  working,"  he 
says,  "on  the  natural  rights  of  men  not  yet 
gathered  into  society,  but  upon  the  rights 
modified  by  society  and  interwoven  with  what 
we  call  the  rights  of  States."  He  outlines 
what  the  preamble  should  set  forth ;  his  views 
are  sound,  but  his  intended  preamble  is  not  the 
preamble  reported  by  the  Committee  of  De- 
tail. 

There  is  a  curious  provision  in  his  draught 
relating  to  the  compensation  of  Senators: 
"The  wages  of  Senators  shall  be  paid  out  of 
the  treasury  of  the  United  States ;  those  wages 

for  the  first  six  years  shall  be dollars  per 

diem.  At  the  beginning  of  every  sixth  year 
after  the  first  the  supreme  judiciary  shall 
cause  a  special  jury  of  the  most  respectable 
merchants  and  farmers  to  be  summoned  to  de- 
clare what  shall  have  been  the  averaged  value 
of  wheat  during  the  last  six  years,  in  the  State 
where  the  legislature  shall  be  sitting;  and  for 

163 


THE  PINCKNEY  DRAUGHT 

the  six  subsequent  years,  the  Senators  shall 

receive  per  diem  the  averaged  value  of 

bushels  of  wheat. ' ' 

This  extraordinary  provision  for  the  benefit 
of  Senators  only  illustrates  the  crudity  of 
Randolph's  intentions  at  the  time  and  the  in- 
completeness of  his  plan. 

The  annotations  of  Rutledge  are  few  but 
they  are  valuable  for  they  authenticate  the 
paper ;  they  prove  it  was  the  very  paper  upon 
which  Randolph  and  Rutledge  worked;  and 
that  it  was  all  which  they  had  then  prepared 
toward  a  draught  of  the  Constitution. 

These  draughts  of  Randolph  and  Wilson 
disclose  another  fact  of  unusual  interest. 
When  the  Randolph  draught  was  found  bear- 
ing the  annotations  of  Rutledge,  it  suggested 
the  idea  that  the  two  Southern  members  of 
the  Committee  of  Detail  had  put  their  heads 
together  to  draught  a  constitution  which 
would  be  accepted  at  the  South,  and  that  prob- 
ably the  three  Northern  members  had  pre- 
pared another  which  would  be  accepted  at  the 
North.  But  the  final  draught  of  Wilson  dis- 
pels that  illusion.  We  now  know  that  Rut- 
ledge  gave  quite  as  much  attention  to  the  Wil- 

164 


WILSON  AND  EANDOLPH  DRAUGHTS 

son  draught  as  to  the  Randolph  draught,  and 
that  he  wrote  many  more  amendments  upon 
its  margin.  Nothing  has  been  discovered  to 
show  that  Ellsworth  and  Gorham  even  at- 
tempted to  draught  a  constitution;  and  after 
finding  that  the  other  members  used  and  util- 
ized and  amended  the  Pinckney  draught  we 
know  that  there  was  nothing  left  for  Ellsworth 
and  Gorham  to  draught.  They  were  not  con- 
structive men  in  the  Convention,  though  being 
critically  minded  they  may  have  rendered 
good  service  in  the  way  of  revision,  but  they 
contributed  nothing  to  the  draught  of  the 
Committee.  Every  provision  in  it  is  traceable 
to  Pinckney,  Wilson,  Randolph  and  Rutledge, 
and  they  were  its  authors. 

The  second  and  third  draughts  of  Wilson 
appear  in  neatness  and  completeness  to  be 
copies.  There  is  nothing  indicative  in  them 
of  an  author's  perturbations.  The  writing  is 
small  and  finished.  If  it  were  not  known  to 
be  Wilson's  hand  one  could  easily  believe  it  to 
be  that  of  a  secretary,  giving  good  work  for 
wages,  undisturbed  by  the  cross  currents  of 
thought  and  composition.  But  on  the  back  of 
a  sheet  of  the  second  draught  is  a  paragraph 

165 


THE  PINCKNEY  DRAUGHT 

which  is  unmistakably  a  rough  draught,  which 
is  unquestionably  author's  work,  warped  and 
altered  in  the  uncertainties  of  construction 
and  composition;  and  this  piece  of  work  is  a 
preamble. 

As  first  written,  before  erasures  and  inter- 
lineations oegan,  it  stood  as  follows: 

"We  the  people  of  the  States  of  New  Hamp- 
shire etc.  do  agree  upon  ordain  and  establish 
the  following  Frame  of  Government  as  the 
Constitution  of  the  United  States  of  Amer- 
ica according  to  which  we  and  our  Posterity 
shall  be  governed  under  the  Name  and  Stile 
of  the  United  States  of  America." 

Wilson  then  amplified  the  first  part  of  this 
draught,  and  the  amplifications  well  illustrate 
the  bent  of  his  mind  toward  details  and  par- 
ticulars ;  and  he  next  reduced  it  by  omitting  the 
clauses  which  relate  to  the  government  of  our- 
selves and  our  posterity,  and  to  the  "Name 
and  Stile"  of  the  future  nation  so  that  it  reads 
as  follows: 

"We  the  People  of  the  States  of  New  Hamp- 
shire   etc.    already    confederated    under    and 
166 


WILSON  AND  RANDOLPH  DRAUGHTS 

known  by  the  Stile  of  the  United  States  of 
America  do  ordain  declare  and  establish  the 
following  Frame  of  Government  as  the  Con- 
stitution of  the  said  United  States." 

Neither  of  these  versions  is  the  preamble  re- 
ported by  the  Committee.  Each  lacks  the 
bold  simplicity  and  comprehensiveness  and  di- 
rectness of  Pinckney's:  "We  the  People  of 
New  Hampshire"  etc.  "do  ordain  declare  and 
establish  the  following  Constitution  for  the 
government  of  ourselves  and  posterity. ' ' 

The  preamble  is  in  words  and  structure  a 
small  thing.  Two  persons  having  the  tasks 
set  them  of  preparing  a  preamble  with  that 
of  Massachusetts  before  them  as  material  out 
of  which  each  should  be  made,  could  hardly 
avoid,  one  would  think,  evolving  out  of  it  two 
sentences  which  would  be  in  terms  almost 
identical.  But  even  in  this  small  thing  the 
different  traits  and  methods  and  style  of  the 
two  men  appear.  Pinckney  takes  the  Massa- 
chusetts preamble  and  reduces  it  until  he  gets 
what  he  wants  without  a  superfluous  word. 
Wilson  cannot  resist  amplifying  even  while  he 
is  condensing.  When  we  get  through  with 

167 


THE  PINCKNEY  DBAUGHT 

what  is  unquestionably  Wilson's  work,  the 
preamble  for  the  Committee  remained  to  be 
written — unless  it  was  already  written  in  the 
Pinckney  draught. 

In  the  investigation  of  the  charges  of  Madi- 
son against  Pinckney  it  was  found  that  when- 
ever the  evidence  was  subjected  to  a  rigorous 
examination  the  case  broke  down.  These 
draughts  of  Wilson  and  Eandolph  though  not 
intended  as  a  charge  against  Pinckney  may  be 
treated  as  such — the  charge  of  appropriating 
Wilson's  work  and  representing  it  to  be  his 
own.  Accordingly  I  have  in  like  manner,  ex- 
amined the  evidence  and  have  again  found 
that  it  does  not  sustain  the  charge.  A  few  il- 
lustrations will  make  this  plain, 

The  preamble  in  the  Committee's  draught  is 
in  Wilson's,  word  for  word.  When  we  find 
that  this  preamble  is  in  the  preliminary 
draught  of  Wilson  (a  member  of  the  commit- 
tee), and  in  the  finished  product  (the  draught 
of  the  committee),  we  easily  infer  that  Wilson 
was  the  author,  the  originator  of  the  preamble, 
and  when  we  find  that  the  same  preamble  is  in 
the  draught  of  Pinckney  and  know  that  he 
possessed  a  copy  of  the  Committee's  draught 

168 


WILSON  AND  RANDOLPH  DRAUGHTS 

we  are  in  danger  of  taking  another  step  on  the 
pathway  of  assumption  and  reaching  the  con- 
clusion that  Pinckney  must  have  taken  his 
preamble  from  the  Committee's  draught. 
This  makes  a  case  against  Pinckney  which  is 
entitled  to  explanation  or  examination. 

The  preamble  to  the  Constitution  of  the 
United  States  was  suggested  by  the  Articles 
of  Confederation  and  the  constitutions  of 
eleven  of  the  thirteen  States.  Its  language 
was  taken  by  Pinckney  or  by  Wilson,  or  by 
both,  from  the  Constitution  of  Massachusetts 
by  much  condensing.  Wilson's  draught  is 
identical  in  terms  with  Pinckney 's  save  for  the 
insertion  of  a  single  word,  "our,"  in  the  last 
line;  "for  the  government  of  ourselves  and 
our  posterity. " 

This  word  "our"  is  here  a  word  of  limita- 
tion, a  word  which  taken  literally  would  con- 
fine the  blessings  and  government  of  the  Con- 
stitution to  the  men  who  made  it  and  their  pos- 
terity. But  at  the  time  when  these  early  con- 
stitutions were  framed  the  growth  of  the 
country  it  was  foreseen  would  depend  chiefly 
on  immigration.  The  Constitution  of  Massa- 
chusetts does  not  use  the  word  "citizen,"  and 

169 


THE  PINCKNEY  DRAUGHT 

throws  the  door  of  the  elective  franchise  open 
to  "every  male  person"  "resident  in  any  par- 
ticular town"  and  to  "the  inhabitants  of  each 
town."  "And  to  remove  all  doubts  concern- 
ing the  meaning  of  the  word  ' inhabitant'  in 
this  constitution,  every  person  shall  be  con- 
sidered as  an  inhabitant,  for  the  purpose  of 
electing  and  being  elected  into  any  office  or 
place  within  the  State  in  that  town,  district  or 
plantation  where  he  dwelleth  or  has  his  home. ' ' 
The  draughtsmen  of  the  Massachusetts  Con- 
stitution therefore  with  logical  exactitude,  left 
the  word  "posterity"  unrestricted,  and  broad 
enough  to  extend  to  the  posterity  of  all  men 
who  thereafter  might  become  inhabitants 
within  the  State. 

Two  things  must  now  be  noted.  The  first 
is  that  every  word  in  Pinckney's  preamble, 
save  one,  was  taken  from  the  preamble  of  the 
constitution  of  Massachusetts;  the  second, 
that  Pinckney's  draught  adheres  to  the  un- 
restricted "posterity"  of  the  constitution,  and 
does  not  follow  the  restricted  "posterity"  of 
the  Wilson  draught.  The  charge  that  Pinck- 
ney's  preamble  was  "necessarily"  derived 
from  the  Committee's  draught  is  therefore 

170 


WILSON  AND  EANDOLPH  DRAUGHTS 

doubly  refuted.  There  was  a  source  to  which 
Pinckney  could  go  for  his  preamble,  the  con- 
stitution of  Massachusetts,  and  he  went  there ; 
there  was  a  deviation  from  the  constitution  of 
Massachusetts  in  the  Wilson  draught,  and 
Pinckney  did  not  follow  it. 

Wilson  probably  inserted  the  word  "our," 
in  his  preamble  for  a  rhetorical  reason ;  for  he 
was  one  of  the  signers  of  an  instrument  which 
rang  with  its  own  concluding  words  "OUR 

LIVES,  OUR  FORTUNES  AND  OUR  SACRED  HONOR. ' ' 

The  insertion  of  one  word  (our)  in  one  of 
these  preambles  is  a  slender  strand  of  cir- 
cumstantial evidence.  But  circumstantial  evi- 
dence is  made  up  generally  of  slender  strands ; 
and  circumstantial  evidence  is  least  suspicious 
when  the  strands  are  severally  insignificant. 
With  the  Declaration  of  Independence  and  the 
Articles  of  Confederation  and  eleven  of  the 
State  constitutions  containing  preambles,  it 
is  inconceivable  that  Pinckney  would  have 
framed  his  draught  without  a  preamble;  and 
if  Pinckney  framed  the  preamble,  as  he  must 
have  done,  it  is  inconceivable  that  he  would 
have  thrown  it  aside  in  1818  and  substituted 
another  man's,  for  he  was  never  ashamed  of 

171 


THE  PINCKNEY  DRAUGHT 

his  own  work.  And  it  must  be  taken  as  a 
fixed  fact  that  Pinckney  had  a  preamble,  for 
the  structure  of  the  draught  required  it;  the 
first  article  would  be  meaningless  without  one, 
"The  stile  of  this  government" — the  govern- 
ment announced  in  the  preamble.  Therefore 
having  the  necessity  of  a  preamble,  and  the 
production  of  one  in  1818,  and  the  strict  ad- 
herence in  words  and  intent  to  the  consti- 
tution of  Massachusetts  and  Pinckney 's  famil- 
iarity with  that  constitution,  the  severally 
slender  strands  become  a  cord  of  circumstan- 
tial evidence  which  must  satisfy  an  unpre- 
judiced mind  that  Pinckney  was  the  author  of 
the  preamble  in  his  draught.  There  are  too 
many  clews  here  to  be  disregarded,  and  they 
all  lead  one  way.  The  unquestionable  sketches 
of  a  preamble  in  Wilson's  and  Randolph's 
handwriting  show  only  three  attempts  and 
three  failures. 

Let  us  now  consider  a  second  illustrative 
case: 

As  we  have  seen  in    a  previous    chapter 
(Chap.  XI)  the  3d  of  the  23  resolutions  de- 
clared that  the  members  of  the  House  of  Rep- 
resentatives "ought"  to  receive  an  adequate 
172 


WILSON  AND  RANDOLPH  DRAUGHTS 

compensation  for  their  services;  and  the  4th 
resolution,  that  the  members  of  the  Senate 
" ought "  "to  receive  a  compensation  for  the 
devotion  of  their  time  to  the  public  service." 
The  term  "adequate"  implied  and  required 
the  exercise  of  some  discretionary  power, 
which  must  necessarily  be  national.  For  if 
Senators  and  Representatives  were  to  be  paid 
by  the  States  which  sent  them  to  Congress,  the 
members  of  Congress  could  not  well  turn 
around  and  dictate  to  the  States  what  they 
should  be  paid.  This  was  understood  at 
the  time.  For  on  the  22d  and  26th  of  June 
when  the  Convention  refused  to  retain  the 
words  "to  be  paid  out  of  the  National  Treas- 
ury" in  the  3d  resolution,  "Massachusetts 
concurred"  as  Madison  says,  "not  because 
they  thought  the  State  Treasury  ought  to  be 
substituted;  but  because  they  thought  nothing 
should  be  said  on  the  subject,  in  which  case 
it  wd.  silently  devolve  on  the  Nat.  Treasury 
to  support  the  National  Legislature." 

Furthermore  this  thing  was  not  done  in  a 
corner  and  the  consideration  of  it  was  not 
confined  to  an  hour.  On  the  12th  of  June  the 
Committee  of  the  Whole  had  resolved  that  the 

173 


THE  PINCKNEY  DRAUGHT 

Representatives  in  Congress  "ought  to  be 
paid  out  of  the  National  Treasury, "  and  again 
on  the  same  day  that  Senators  " ought "  "to 
be  paid  out  of  the  National  Treasury ";  and 
on  the  13th  of  June  the  committee  had  voted 
to  report  these  resolutions  to  the  Convention; 
and  on  the  22d  of  June  the  Convention  had  re- 
fused to  change  this  to  payment  by  the  States. 
Moreover"  the  proposition  that  members  be 
paid  by  the  States  had  been  condemned  by  the 
strongest  men  in  the  Convention.  "Those 
who  pay  are  the  masters  of  those  who  are 
paid, ' '  Hamilton  had  said ;  and  Gorham,  Ran- 
dolph, King,  "Wilson,  and  Madison  had  said 
as  much. 

Nevertheless  the  Committee  of  Detail  re- 
ported a  provision  that  the  members  should  be 
paid  by  the  States;  and,  not  only  this,  but 
also,  that  the  compensation  should  be  "ascer- 
tained" "by  the  State  in  which  they  shall  be 
chosen." 

The  only  reason  for  or  explanation  of  the 
Committee's  act  so  far  as  we  know  is  that 
working  hurriedly,  they  overlooked  one  of  the 
details  of  the  3d  and  4th  resolution,  and,  using 
Pinckney's  draught  as  their  copy,  inadver- 

174 


WILSON  AND  RANDOLPH  DRAUGHTS 

tently  allowed  this  provision  of  his  to  stand 
unchanged. 

In  these  newly  found  papers  of  Wilson  this 
provision  making  the  compensation  of  the 
national  legislators  dependent  upon  the  action 
of  the  State  legislators  appears  just  as  it 
stands  in  the  draught  of  the  Committee  of  De- 
tail. Did  Wilson  originate  this  or  did  he  get 
it  from  the  Pinckney  draught? 

There  is  good  reason  for  believing  that  such 
a  provision  would  be  found  in  Pinckney 's 
draught.  On  the  22nd  of  June  when  the 
clause  of  the  3d  resolution  declaring  that  mem- 
bers "  ought "  to  be  paid  out  of  the  public 
treasury"  had  been  advocated  by  some  of  the 
strongest  men  in  the  Convention,  and  the  Con- 
vention apparently  were  about  to  adopt  it, 
their  immediate  action  was  blocked  by  South 
Carolina;  "The  determination  of  the  House 
on  the  whole  proposition  was,  on  motion  of 
the  Deputies  of  the  State  of  South  Carolina, 
postponed  until  to-morrow,"  says  the  Journal. 
A  State  had  this  right  under  the  Rules  of  the 
Convention,  and  the  Deputies  of  South  Caro- 
lina exercised  it,  Pinckney  being  one  of  them. 
On  the  following  day  they  succeeded  in  defeat- 

175 


THE  PINCKNEY  DBAUGHT 

ing  the  adoption  of  the  clause.  On  the  26th  of 
June  General  Pinckney  "proposed  that  no 
salary  should  be  allowed "  to  Senators.  "This 
branch "  he  said  "was  meant  to  represent 
wealth;  it  ought  to  be  composed  of  persons  of 
wealth."  And  "on  the  question  for  payment 
of  the  Senate  to  be  left  to  the  States"  South 
Carolina  voted  "aye." 

But  there  is  no  good  reason  why  we  might 
expect  to  find  this  provision  in  Wilson's 
draught.  The  resolutions  did  not  so  direct; 
and  there  had  not  been  a  single  vote  of  the 
Convention  which  committed  this  matter  of 
compensation  to  the  States;  and  Wilson's  per- 
sonal bias  could  not  have  misled  him  for  he 
condemned  it.  On  the  22nd  of  June  he  had  said 
in  the  Convention  that ' '  he  thought  it  of  great 
moment  that  the  members  of  the  National 
Government  should  be  left  as  independent  as 
possible  of  the  State  Governments  in  all  re- 
spects," and  during  the  same  debate  he  had 
moved  that  the  salaries  of  the  1st  branch  "be 
ascertained  by  the  National  Legislature." 
The  explanation  is  that  Wilson  working  with 
Pinckney  ?s  draught  before  him  gave  his  at- 

176 


WILSON  AND  RANDOLPH  DRAUGHTS 

tention  to  improving  its  phraseology ;  and  that 
the  other  members  of  the  Committee  confiding 
in  Wilson's  scrupulous  carefulness  and  par- 
ticularity overlooked  his  mistake. 
11 

We  have  before  us  a  third  illustration : 

The  Constitution  of  New  York  provided, 
^The  supreme  legislative  power  within  this 
State  shall  be  vested  in  two  separate  and  dis- 
tinct bodies  of  men;  the  one  to  be  called  the 
Assembly  of  the  State  of  New  York ;  the  other 
to  be  called  the  Senate  of  the  State  of  New 
York;  who  together  shall  form  the  legislature, 
and  meet  once  at  least  in  every  year  for  the 
despatch  of  business." 

The  draught  of  Pinckney  varies  slightly; 
"The  legislative  power  shall  be  vested  in  a 
Congress,  to  consist  of  two  separate  houses; 
one  to  be  called  the  house  of  Delegates;  and 
the  other  the  Senate,  who  shall  meet  on  the  — 
day  of  — ^—  in  every  year. ' ' 

The  draught  of  Wilson  also  follows  this 
with  little  variation: 

1  i  The  Legislative  power  of  the  United  States 
shall  be  vested  in  two  separate  and  distinct 
Bodies  of  Men,  the  one  to  be  called  the  House 

177 


THE  PINCKNEY  DRAUGHT 

of  Representatives  of  the  People  of  the  United 
States,  the  other  the  Senate  of  the  United 
States." 

So  far  we  have  in  these  three  instruments 
the  same  earmark:  "the  one  to  be  called  the 
Assembly  of  the  State  of  New  York;  the  other 
to  be  called  the  Senate. "  "  One  to  be  called  the 
House  of  Delegates  and  the  other  the  Senate. ' 9 
"The  one  to  be  called  the  House  of  Represen- 
tatives, the  other  the  Senate."  But  the 
draught  of  the  Committee  of  Detail  departs 
both  in  words  and  structure  from  this  form: 
"The  Legislative  Power  shall  be  vested  in  a 
Congress  to  consist  of  two  separate  and  dis- 
tinct bodies  of  men,  a  House  of  Representa- 
tives and  a  Senate ;  each  of  which  shall  in  all 
cases  have  a  negative  upon  the  other." 

Here  it  was  possible  that  Wilson  followed 
the  Pinckney  draught,  which  was  in  his  pos- 
session, but  it  was  not  possible  that  Pinckney 
copied  Wilson's  draught  which  was  then  un- 
published and  unknown.  The  words  that 
Pinckney  and  Wilson  both  used,  "the  one  to 
be  called  the  House,  the  other  the  Senate" 
are  clews  which  lead  from  Pinckney  directly 
to  the  Constitution  of  New  York.  The  Com- 

178 


WILSON  AND  RANDOLPH  DRAUGHTS 

mittee  changed  the  words  and  changed  the 
structure  of  the  sentence  and  thereby  rendered 
it  certain  that  Pinckney  did  not  derive  his 
provision  from  their  draught. 
Let  us  take  another  illustrative  case: 
Luther  Martin's  resolution  of  July  17th 
provided,  "The  legislative  acts  of  the  United 
States "  "and  all  treaties "  "shall  be  the  su- 
preme law  of  the  respective  States."  (The 
7th  of  the  23  resolutions.)  Article  VIII.  of 
the  draught  of  the  Committee  of  Detail  varied 
the  phraseology  in  one  word  "shall  be  the 
supreme  law  of  the  several  States."  The  com- 
mittee of  Style  gave  us  the  provision  as  it 
stands  in  the  Constitution:  (Art.  VI.)  "This 
Constitution  and  the  Laws  of  the  United 
States  which  shall  be  made  in  pursuance 
thereof;  and  all  treaties  which  shall  be  made 
under  the  Authority  of  the  United  States  shall 
be  the  supreme  law  of  the  land." 

Turning  back  from  the  Constitution  to 
Pinckney 's  draught,  avowedly  drawn  up  be- 
fore the  work  of  the  Convention  had  even  be- 
gun, we  find  in  his  Artivle  VI.  "All  acts  made 
by  the  legislature  of  the  United  States  pur- 
suant to  this  Constitution,  and  all  treaties 
179 


THE  PINCKNEY  DRAUGHT 

made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land. ' ' 

This  assuredly  seems  to  be  an  instance 
which  confirms  Madison;  that  is  to  say  an  in- 
stance where  as  Madison  said  there  are  to  be 
found  in  the  draught  in  the  State  Department, 
"the  results  of  critical  discussion  and  modifi- 
cation in  the  Convention."  Must  we  also  add, 
with  Madison  "which  could  not  have  been  an- 
ticipated"? Moreover  if  Pinckney  obtained 
this  provision  by  purloining  it,  he  must  have 
taken  it  from  the  Constitution  itself.  The 
language  in  his  draught  apparently  involves 
and  combines  three  distinct  acts  of  the  Con- 
vention; the  adoption  of  the  resolution  of 
Martin  on  the  17th  of  July;  the  acceptance  of 
the  Committee 's  draught  of  the  6th  of  August ; 
the  revision  by  the  Committee  of  Style,  just 
before  the  dissolution  of  the  Convention, 
This  makes  a  dark  charge  against  Pinckney — 
far  darker  and  more  specific  than  any  charge 
that  Madison  preferred  against  him.  At  first 
sight  it  seems  as  if  at  last  Pinckney  was  taken 
in  the  toils  of  his  own  weaving,  as  if  there 
were  no  escape  for  him  and  that  he  must  be 
convicted.  But  the  simple  explanation  is  that 

180 


WILSON  AND  RANDOLPH  DRAUGHTS 

Pinckney  took  his  provision  and  its  verbiage 
from  the  Congress  of  the  Confederated  States 
in  the  resolution  of  March  21st  1787.  Luther 
Martin  did  not  adhere  to  the  language  of  the 
resolution;  and  he  did  not  intend  to;  for  his 
resolution  was  a  compromise,  an  alternate  for 
a  proposed  power  in  Congress  to  negative  the 
laws  of  the  States,  and  he  intended  that  his 
resolution  should  bear  directly  and  explicitly 
upon  "the  respective  States."  The  subject 
was  one  of  great  importance,  of  surpassing 
interest  and  had  but  recently  been  disposed  of 
by  compromise  in  the  Convention,  and  the 
Committee  properly  adhered  to  Martin's  reso- 
lution, correcting  only  one  word  by  the  sub- 
stitution of  another,  "several"  for  "respec- 
tive," "shall  be  the  supreme  law  of  the  several 
States." 

Pinckney  had  been  a  member  of  the  Con- 
gress when  the  resolution  of  March  21st  was 
passed;  he  may  have  draughted  it  himself; 
and  certainly  it  covered  a  matter  in  which 
he  was  interested  above  all  other  things,  the 
supremacy  of  the  National  Government.  The 
Committee  of  Style  may  have  taken  the  con- 
cluding phrase  from  the  resolution  of  Con- 

181 


THE  PINCKNEY  DRAUGHT 

gress  or  theymay  have  placed  it  in  the  Consti- 
tution on  their  own  motion;  for  Trevett  v. 
Weeden  had  been  heard  and  adjudicated  by 
the  Supreme  Court  of  Rhode  Island  on  Sep- 
tember 25th,  26th,  1786,  and  the  words  "THE 
LAW  OF  THE  LAND"  were  in  the  air;  and  the 
term  had  received  a  judicial  significance 
which  has  never  been  adequately  appreciated 
It  meant  an  authority  higher  than  a  statute. 

There  are  three  important  articles  in  Wil- 
son's draught  which  are  not  Wilson's.  These 
appear  on  the  margin  in  the  handwriting  of 
Rutledge  and  answer  to  article  XIV,  XV  and 
XVI  of  the  Committee's  draught.  As  they 
are  in  almost  the  precise  language  of  Pinck- 
ney's  articles  12  and  13  the  much  repeated 
question  again  arises,  did  Rutledge  take  them 
from  the  Pinckney  draught ;  were  they  then  in 
the  Pinckney  draught  to  be  taken;  or  did 
Pinckney  abstract  them  from  the  Committee's 
draught?  The  question  is  easily  and  deci- 
sively answered:  these  articles  are  described 
in  the  Observations;  Pinckney's  title  to  them 
cannot  be  questioned;  Wilson  and  Rutledge 
had  his  draught  before  them,  and  used  it,  when 
Rutledge  ivrote  these  articles  upon  the  margin. 

182 


WILSON  AND  EANDOLPH  DRAUGHTS 

The  veto  power  was  cast  by  the  Convention 
in  their  resolutions  with  those  of  the  Execu- 
tive. Pinckney  had  placed  it  in  his  draught 
among  the  legislative,  though  he  is  careful  to 
say  in  the  Observations  that  the  Executive 
"is  not  a  branch  of  the  Legislature  farther 
than  as  a  part  of  the  council  of  revision. " 
Nevertheless  he  placed  the  veto  at  the  end  of 
his  article  5 — an  article  relating  to  the  choos- 
ing of  members  of  the  lower  house;  to  the 
privileges  of  Representatives  and  Senators; 
to  the  business  proceedings  of  both  houses. 
Wilson  more  clearly  perceived  that  the  Ameri- 
can veto  would  lack  the  finality  of  the  Le  roy, 
avisera  of  the  Crown,  and  that  it  would  be 
neither  a  legislative  nor  an  executive  power 
though  having  the  properties  of  both;  and  he 
properly  made  of  the  veto  power  an  entire  and 
independent  article,  article  7  of  his  draught. 
There  were  members  of  the  Convention  who 
regarded  the  veto  power  as  a  bulwark  against 
the  encroachments  of  the  legislative  power; 
and  Wilson  himself  had  said  that,  "the  Exe- 
cutive ought  to  have  an  absolute  negative "; 
that  "without  such  a  self-defence  the  Legis- 
lature can  at  any  moment  sink  it  into  non- 
183 


THE  PINCKNEY  DRAUGHT 

existence. ' '  Unquestionably  the  veto  provision 
ought  to  have  been  placed  in  the  Committee's 
draught  as  Wilson  placed  it  in  his  own.  But 
it  was  not.  On  the  contrary  it  appears  there 
as  it  appears  in  Pinckney's,  as  an  incongruous 
paragraph  at  the  end  of  an  article  which  deals 
with  the  House  of  Representatives,  with  the 
business  of  both  Houses  and  with  the  privi- 
leges of  the  members  of  each.  The  one  thing 
certain  here  is  absolutely  certain — that  the 
Committee  in  this  did  not  follow  Wilson's 
draught  though  it  was  correct  and  did  follow 
some  other  draught  though  it  was  incorrect. 

It  is  comprehensible  that  if  the  provision 
of  the  veto  power  had  started  wrong  as  it  did 
in  Pinckney's  draught,  it  might  have  con- 
tinued wrong,  and  its  misplacement  might 
have  remained  unnoticed;  but  it  is  incompre- 
hensible how  the  error  could  have  been  known 
to  at  least  the  two  leading  members  of  the 
Committee  and  have  been  actually  and  plainly 
corrected  by  one  of  them  and  the  provision 
then  have  relapsed  into  the  condition  in  which 
Pinckney  left  it,  unless  the  Committee  found 
about  the  end  say  of  the  seventh  day  that  they 
must  forego  either  the  completion  of  Wilson's 

184 


WILSON  AND  RANDOLPH  DRAUGHTS 

carefully  prepared  work  or  their  bringing 
into  the  convention  printed  copies  for  the  use 
of  members,  and  that  they  then  determined 
to  use  Pinckney's  draught  as  copy  for  the 
printer,  letting  Wilson  work  into  it,  so  far  as 
he  could,  the  corrections  that  he  had  embodied 
in  his  own  and  the  changes  which  the  Commit- 
tee had  agreed  upon.  The  incompleteness 
with  which  this  was  done  shows  very  plainly 
that  toward  the  end  of  the  ten  days  the  Com- 
mittee worked  in  haste.  There  are  too  many 
errors  in  the  draught  which  would  be  both  in- 
excusable and  inexplicable  if  the  Committee 
had  had  ordinary  time  to  do  their  extraordi- 
nary work. 

There  is  a  curious  omission  in  Wilson's 
draught  which  indirectly  brings  to  the  light 
the  composite  authorship  of  one  section  of  the 
Constitution. 

In  1777  the  punishment  of  treason  had  been 
a  delicate  subject  in  the  United  States  more 
likely  to  be  avoided  than  discussed.  In  1787 
the  members  of  the  Convention  had  not  for- 
gotten that  within  a  dozen  years  they  had  had 
a  personal  interest  in  that  subject.  Pinckney 
in  article  6  had  given  Congress  twenty-two 

185 


THE  PINCKNEY  DRAUGHT 
specific  unrestricted  powers  but  when  he  came 
to  the  power  to  declare  the  punishment  of 
treason  he  paused  and  defined  what  treason 
should  consist  in  and  provided  that  no  per- 
son should  be  convicted  of  the  restricted 
crime  but  by  the  testimony  of  two  witnesses. 
He  threw  all  this  into  a  distinct  paragraph 
which  ultimately,  with  additional  restrictions, 
became  section  2  of  article  VII  of  the  Com- 
mittee's draught.  But  neither  the  paragraph 
of  Pinckney  nor  the  section  of  the  Committee 
is  in  the  draught  of  Wilson. 

Wilson  did  not  overlook  the  subject,  "The 
Legislature  of  the  United  States  shall  have  the 
power, "  his  draught  says,  "to  declare  what 
shall  be  treason  against  the  United  States, " 
and,  having  attached  no  restriction  to  the 
power,  he  properly  placed  it  among  the  speci- 
fied powers  immediately  after  the  one  "To 
declare  the  law  and  punishment  of  piracies 
and  felonies  committed  on  the  high  seas  and 
the  punishment  of  counterfeiting  the  coin  of 
the  United  States,  and  of  offences  against  the 
law  of  nations. " 

But  Eutledge  did  not  consent  to  this.  He 
and  Pinckney  seem  to  have  vaguely  feared 

186 


WILSON  AND  RANDOLPH  DRAUGHTS 

that  the  law  of  treason  might  yet  be  admin- 
istered in  the  United  States  by  George  III 
and  he  scrawled  with  his  ruthless  hand  on  the 
margin  of  Wilson's  carefully  written  page, 
"Not  to  work  corruption  of  Blood  or  Forfeit 
except  during  the  life  of  the  party ";  and  Wil- 
son thereupon  erased  his  own  provision  and 
struck  it  out  from  among  the  specific,  unre- 
stricted powers. 

Here  the  significant  fact  to  be  noted  is  that 
the  words  written  on  the  margin  of  Wilson's 
draught  were  not  taken  from  Pinckney 's. 
That  is  to  say  the  restrictions  proposed  by 
Rutledge  were  additional  to  those  set  forth  by 
Pinckney.  What  Pinckney  wrote  and  what 
Eutledge  wrote  and  nothing  more  make  the 
second  section  of  the  Committee's  draught 
compounded  and  rearranged.  The  material 
was  supplied  by  Pinckney  and  Rutledge;  the 
reconstruction,  judging  by  the  careful  and  log- 
ical way  the  work  was  done  was  by  Wilson: 
1  the  definition  of  the  crime;  2  the  power  to 
punish  the  crime  defined;  3  the  restriction 
upon  judicial  proceedings,  on  the  testimony 
of  two  witnesses ;  4  the  restriction  upon  the  re- 
sult of  conviction,  that  it  should  not  work  cor- 

187 


THE  PINCKNEY  DRAUGHT 

ruption  of  blood,  or  forfeiture  except  dur- 
ing the  life  of  the  person  attainted.  It  is  also  to 
be  noted  that  no  draught  of  this  section  2  has 
been  found.  For  reasons  subsequently  to  be 
stated  (chap.  XII)  it  must  be  inferred  that  it 
was  framed  on  the  margin  of  the  Pinckney 
draught. 

In  article  8  of  Wilson's  draught  immedi- 
ately following  his  treason  clause  is  this  pro- 
vision : 

"To  regulate  the  discipline  of  the  militia  of 
the  several  States." 

In  article  6  of  Pinckney  ?s  draught  the  same 
power  is  given: 

"To  pass  laws  for  arming  organizing  and 
disciplining  the  militia  of  the  United  States." 

This  grant  of  power  to  arm  organize  and 
discipline  meant  that  control  of  State  troops 
should  be  taken  from  the  States  and  lodged  in 
the  general  government.  It  was  a  radical  de- 
parture from  what  had  been;  a  change  not 
countenanced  by  the  Articles  of  Confedera- 
tion and  not  authorized  by  the  23  resolutions. 
During  the  debates  no  member  of  the  Conven- 
tion had  so  much  as  suggested  it;  and  on  the 
26th  of  July  when  the  Convention  adjourned 

188 


WILSON  AND  RANDOLPH  DRAUGHTS 

to  enable  the  Committee  of  Detail  to  draught 
a  constitution,  Pinckney  alone  had  ventured  to 
formulate  a  provision  which  might  alarm  the 
States  and  arouse  the  anger  and  opposition 
of  the  militia.  He  had  done  so;  that  we 
know;  it  is  incontrovertible,  for  it  is  specific- 
ally described  in  the  Observations  "the  ex- 
clusive right  of  establishing  regulations  for 
the  government  of  the  militia  of  the  United 
States  ought  certainly  to  be  vested  in  the  Fed- 
eral Government." 

Yet  the  Committee  of  Detail  did  not  think 
so  and  they  did  not  report  such  a  provision. 
Here  again  it  is  possible  that  Wilson  took  his 
provision  from  Pinckney 's  draught,  but  it  is 
not  possible  that  Pinckney  took  his  from 
Wilson's. 

The  draught  of  Randolph  discloses  three 
important  pieces  of  information  which  tend 
positively  to  sustain  the  Pinckney  draught. 
The  first  is  (in  the  words  of  Mr.  Meigs)  "that 
it  was  drawn  up  after  the  Convention  had 
agreed  upon  the  resolutions  that  were  re- 
ferred to  the  Committee  of  Detail  on  July 
26th;  and  in  numerous  instances  its  language 
is  modeled  upon  them  with  even  verbal  ac- 

189 


THE  PINCKNEY  DRAUGHT 

curacy."  (Growth  of  the  Constitution,  p. 
318.)  Manifestly  this  draught  was  not  writ- 
ten— was  not  even  begun,  until  after  Ran- 
dolph had  become  a  member  of  the  Committee. 
The  writing  of  it,  the  revising  of  it,  its  numer- 
ous alterations  and  corrections,  the  submis- 
sion of  it  to  Rutledge,  his  examination  of  it 
and  his  changes  and  additions  must  have  taken 
time.  Almost  every  sentence  in  it  is  checked 
as  if  it  had  been  compared  with  some  other 
paper.  In  a  word  it  indicates  that  some  days 
must  have  passed  after  the  26th  of  July  before 
Randolph  and  Rutledge  could  have  written  it, 
and  revised  it,  and  left  it  in  its  present  form; 
and  it  witnesses  the  important  fact  that  only 
five  or  six  days  before  the  finished  draught  of 
the  Committee  of  Detail  was  put  in  the  hands 
of  the  printer  at  least  two  members  of  the 
committee  were  no  nearer  completion  of  the 
work  than  this  disheveled  draught. 

The  great  improbability  against  the  Pinck- 
ney  draught  is  that  one  man  alone  and  unas- 
sisted should  have  prepared  so  much  of  the 
Constitution.  But  it  is  a  hundred  times  more 
improbable  that  this  Committee  unassisted  by 
Pinckney's  draught  should  have  prepared  and 

190 


WILSON  AND  RANDOLPH  DRAUGHTS 

completed  their  own  with  all  its  well  se- 
lected details,  with  language  carefully  taken 
from  many  sources,  and  with  provisions  far  in 
excess  of  their  instructions,  than  that  Pinck- 
ney  should  have  completed  his  in  his  own 
time  (making  as  he  did,  four  or  five  versions 
of  it),  thoroughly  versed,  as  he  was,  in  the 
needs  and  weaknesses  of  the  existing  general 
government  and  the  constitutions  of  the  sev- 
eral States,  and  able  to  confer,  as  he  did,  with 
the  ablest  statesmen  in  the  country. 

The  second  thing  which  the  Randolph 
draught  does  for  us  is  important  and  most  in- 
teresting. It  enables  us  to  ascertain  the  fact 
that  the  section  of  the  Committee's  draught 
which  declares  the  jurisdiction  of  the  Supreme 
Court  (Art.  XI,  sec.  3),  was  the  work  of  three 
persons ;  and  the  very  words  which  each  con- 
tributed. 

The  16th  resolution  of  the  Convention  was 
as  follows : 

"16.  Resolved,  That  the  jurisdiction  of  the 
national  judiciary  shall  extend  to  cases  aris- 
ing under  laws  passed  by  the  general  legis- 
lature, and  to  such  other  questions  as  involve 
the  national  peace  and  harmony. " 

191 


THE  PINCKNEY  DRAUGHT 

Randolph  followed  the  resolution  but  en- 
larged the  jurisdiction;  and  Rutledge  added 
two  provisions  in  marginal  notes;  and  their 
proposed  section  was  as  follows : 

"The  jurisdiction  of  the  supreme  tribunal 
shall  extent,  1,  to  all  cases  arising  under  laws 
passed  by  the  general  Legislature;  2,  to  im- 
peachments of  officers ;  and  3,  to  such  cases  as 
the  national  legislature  shall  assign,  as  in- 
volving the  national  peace  and  harmony;  in 
the  collection  of  the  revenue;  in  disputes  be- 
tween citizens  of  different  States  (here  Rut- 
ledge  has  added  on  the  margin  'in  disputes 
between  a  State  and  a  citizen  or  citizens  of 
other  States');  in  disputes  between  different 
States ;  and  disputes  in  which  subjects  or  citi- 
zens of  other  countries  are  concerned  (here 
Rutledge  has  added  'in  cases  of  admiralty 
jurisdiction').  But  this  supreme  jurisdiction 
shall  be  appellate  only ;  except  in  cases  of  im- 
peachment and  in  those  instances,  in  which 
the  Legislature  shall  make  it  original ;  and  the 
Legislature  shall  organize  it.  The  whole  or  a 
part  of  the  jurisdiction  aforesaid,  according 
to  the  discretion  of  the  legislature,  may  be  as- 

192 


WILSON  AND  RANDOLPH  DRAUGHTS 

signed  to  the  inferior  tribunals  as  original 
tribunals."  Meigs,  p.  244. 

When  we  pass  to  the  draught  of  the  Com- 
mittee of  Detail  we  find  that  the  latter  part  of 
this  section  of  Randolph's  was  adopted,  but 
that  the  first  part  was  rejected.  This  rejec- 
tion however  was  not  a  curtailment  of  juris- 
diction, but  a  substitution  of  other  language 
in  the  stead  of  Randolph's.  The  question 
therefore  which  is  now  presented  to  us  is  this, 
Who  contributed  the  substitute?  Who  was  the 
author  of  the  first  part  of  the  3d  section? 

The  corresponding  declaration  of  jurisdic- 
tion in  the  Pinckney  draught  in  article  10  con- 
tains only  four  subjects  of  jurisdiction.  Each 
of  these  was  suggested  by  other  provisions  of 
the  draught.  Article  8  for  instance,  provides 
that  the  President  may  be  removed  "on  im- 
peachment by  the  House  of  Delegates  and  con- 
viction in  the  Supreme  Court."  Article  10 
accordingly  provides  that  the  jurisdiction  of 
the  Supreme  Court  shall  extend  to  "the  trial 
of  impeachment  of  officers."  The  style  is 
characteristic  of  Pinckney;  clear  and  terse 
and  yet  carelessly  expressed.  "One  of  these 

193 


THE  PINCKNEY  DRAUGHT 

courts, ' '  he  says, ' '  shall  be  termed  the  Supreme 
Court,  whose  jurisdiction  shall  extend  to  all 
cases  arising  under  the  laws  of  the  United 
States,  or  affecting  ambassadors,  other  public 
ministers  and  consuls;  to  the  trial  and  im- 
peachment of  officers  of  the  United  States ;  to 
all  cases  of  admiralty  and  maritime  jurisdic- 
tion." 

If  we  now  turn  to  the  draught  of  the  Com- 
mittee we  shall  find  that  these  lines  are  the 
first  lines  of  section  3,  and  that  the  two 
draughts  are  here  identical.  They  contain  the 
same  provisions,  arranged  in  the  same  se- 
quence, expressed  in  the  same  terms.  These 
lines  therefore  form  the  substitute  which  ap- 
pears to  have  displaced  the  first  part  of  Ran- 
dolph's section.  The  two  things  fit  together 
with  precision. 

The  significant  fact  to  be  noted  here  is  that 
the  Pinckney  draught  contains  the  provisions 
and  words  which  form  the  apparent  substi- 
tute in  the  Committee's  draught,  but  contains 
nothing  more.  In  a  word  not  one  of  the  pro- 
visions which  we  now  know  were  prepared 
by  Randolph  and  Rutledge  are  in  the  Pinckney 
draught. 

194 


WILSON  AND  RANDOLPH  DRAUGHTS 

Four  then  of  the  grants  of  jurisdiction  in 
article  XI  section  3  of  the  Committee's  draught 
apparently  were  taken  from  the  Pinckney 
draught  and  the  remaining  four  unquestion- 
ably were  taken  from  the  Randolph  draught. 
The  section  therefore  is  composite. 

Wilson's  draught  here  comes  into  the  case 
enabling  us  to  understand  how  this  combina- 
tion was  brought  about. 

Wilson  was  in  effect  rewriting  the  Pinckney 
draught.  Finding  the  first  four  subjects  of 
jurisdiction  precisely  what  he  wanted,  he  re- 
tained them  as  they  were  without  change  or 
amendment.  But  they  were  insufficient. 
Randolph,  Wilson  and  Rutledge  were  lawyers 
in  practice  who  could  foresee  controversies  in 
the  future  dual  system  which  Pinckney  had 
not  foreseen.  Accordingly  Wilson  took  four 
additional  subjects  of  jurisdiction  from  Ran- 
dolph's draught  having  Rutledge 's  amend- 
ments and  with  some  revising  thus  brought 
eight  subjects  of  jurisdiction  into  his  draught 
which  subsequently  appeared  in  the  Commit- 
tee's. 

To  say  that  Pinckney  was  fraudulently 
plagiarising  from  the  Committee's  draught  31 

195 


THE  PINCKNEY  DRAUGHT 

years  afterward  and  that  while  so  doing  he 
chanced  to  take  one-half  of  the  Committee's 
subjects  of  jurisdiction  but  not  the  other  half, 
and  that  the  half  which  he  chanced  to  take 
might  very  well  be  his  own,  and  that  the  half 
which  he  did  not  take  chanced,  as  we  now 
know,  to  be  Randolph's  is  to  state  an  absurd- 
ity. There  are  too  many  things  here  to  be 
ascribed  to  chance;  and  each  and  all  of  them 
must  have  chanced  to  take  place  to  make  out  a 
case  of  plagiarism  against  Pinckney. 

The  third  piece  of  information  which  Ran- 
dolph's draught  gives  us  is  in  the  nature  of 
positive  evidence  and  establishes  directly  the 
fact  that  the  Committee  recognized  Pinckney 's 
draught  and  used  it. 

Under  the  heading,  "The  following  are  the 
legislative  [powers]  with  certain  exceptions 
and  under  certain  restrictions/'  Randolph  set 
forth  the  powers  of  Congress,  for  the  most 
part  taken  from  the  Articles  of  Confederation, 
"To  raise  money  by  taxation";  "To  make 
war,"  etc.,  etc.  After  investing  the  general 
government  with  these  powers  he  turned,  not 
illogically,  to  restrictions  which  would  prevent 
the  States  from  usurping  or  denying  the  pow- 

196 


WILSON  AND  RANDOLPH  DRAUGHTS 

ers  so  granted  and  placed  in  his  draught  the 
following  provision: 

"All  laws  of  a  particular  State  repugnant 
hereto  shall  be  void;  and  in  the  decision 
thereon,  which  shall  be  vested  in  the  supreme 
judiciary,  all  incidents  without  which  the  gen- 
eral principle  cannot  be  satisfied  shall  be  con- 
sidered as  involved  in  the  general  principle. " 

This  section  he  subsequently  cancelled  and 
over  it  he  wrote,  "Insert  the  11  article." 

Where  then  is  this  article  11  which  would 
restrict  the  powers  of  the  States  and  render 
their  laws,  if  repugnant  to  the  Constitution, 
void? 

It  cannot  be  article  XI  of  the  Articles  of 
Confederation;  for  it  provides  only  for  the  ad- 
mission of  Canada  as  one  of  the  States  of  this 
Union.  It  cannot  be  article  XI  of  the 
draught  of  the  Committee  of  Detail  for  it  re- 
lates only  to  "The  judicial  power  of  the 
United  States  "j  to  the  judges,  to  jurisdic- 
tion; to  the  trial  of  criminal  offences;  and 
there  is  not  a  line  which  limits  the  power  of  a 
State  or  declares  a  statute  void.  Moreover 
the  restrictions  upon  the  States  in  the  Com- 
mittee 's  draught  are  divided  and  placed  in  two 

197 


THE  PINCKNEY  DRAUGHT 

articles  which  are  numbered  XII,  XIII.  It 
cannot  be  Article  XI  of  Wilson's  draught  for 
it  relates  to  the  powers  of  the  Senate,  the 
power  to  make  treaties,  to  appoint  ambassa- 
dors and  judges,  to  adjudicate  controversies 
between  two  or  more  States,  and  controver- 
sies concerning  lands  claimed  under  conflict- 
ing grants  from  different  States,  it  being  ar- 
ticle IX  of  the  Committee's  draught.  There 
is,  however,  an  article  11  which  places  re- 
strictions upon  the  States,  and  meets  the  re- 
quirements of  Randolph  as  exactly  as  if  it  had 
been  framed  to  effect  his  purpose,  and  it  is 
article  11  of  the  Pinckney  draught.  We  know 
too  that  it  is  Pinckney 's  own,  for  it  is  de- 
scribed in  the  Observations. 

With  the  llth  article  in  Wilson's  draught 
and  the  llth  article  in  the  Committee's  failing 
to  respond  to  the  requirements  of  the  refer- 
ence, and  with  Pinckney 's  article  11  respond- 
ing fully  and  exactly  to  it,  there  is  but  one  con- 
clusion left  which  is  that  Randolph  when  he 
wrote  "Insert  the  11  article"  intended  article 
11  of  the  Pinckney  draught. 

When  the  fact  is  established  that  the  Com- 
mittee of  Detail  had  before  them  the  Pinckney 

198 


WILSON  AND  RANDOLPH  DRAUGHTS 

draught  and  took  from  it  a  single  excerpt, 
though  of  not  more  than  four  lines,  the  burden 
cannot  rest  on  Pinckney  to  account  for 
identities  and  resemblances.  The  onus  pro- 
bandi  will  then  be  upon  the  other  side ;  and  the 
issue  being  whether  the  Committee  used  the 
Pinckney  draught  or  Pinckney  copied  from 
the  Committee 's,  the  presumption  must  be,  un- 
til the  contrary  be  shown,  that  all  identical 
provisions  in  the  two  draughts  originated  in 
Pinckney 's. 

If  James  Wilson  were  now  living,  and  as- 
serting that  he  was  the  true  and  unassisted 
author  of  the  Committee's  draught  these  pa- 
pers would  be  strong,  though  not  conclusive, 
evidence  to  maintain  his  claim;  and  if  Pinck- 
ney had  never  prepared  a  draught  of  the  Con- 
stitution and  his  draught  had  never  been  pre- 
sented to  the  Convention,  and  had  never  been 
referred  to  the  Committee  of  Detail  for  the  ex- 
press purpose  of  assisting  them  in  drawing  up 
a  draught  of  the  Constitution,  these  papers 
would  justify  historical  scholars  in  saying  that 
Wilson  should  occupy  the  place  which  Pinck- 
ney occupies,  and  that  the  alien  member  of  the 
Convention  was  the  chief  individual  contrib- 

199 


THE  PINCKNEY  DBAUGHT 

titor  to  the  Constitution  of  the  United  States. 
But  the  defect  of  these  papers  is  that  we  know 
nothing  about  them,  save  that  they  are  in  the 
handwriting  of  Wilson  and  Eutledge.  That 
they  are  original  matter;  that  they  are  not 
made  up  of  excerpts  from  Pinckney  's  draught : 
are  propositions  which  are  now  sustained  only 
by  conjectures. 

Against  such  conjectures,  there  stand  the 
consistent  silences  of  all  the  members  of  the 
Committee.  Gorham  lived  nine  years  and  said 
nothing  of  his  colleague's  great  work.  Wilson 
lived  eleven  years  and  saw  the  government 
which,  conspicuously,  he  had  helped  to  form 
firmly  established,  and  became  a  judge  of  the 
Supreme  Court,  yet  while  he  lived  gave  no  in- 
timation of  having  drawn  up  the  most  impor- 
tant document  of  the  Convention,  and  when  he 
died  left  no  statement  showing  the  manner  in 
which  the  work  of  the  Committee  of  Detail 
was  done.  When  Wilson  passed  away  it  be- 
hooved Ellsworth  and  Kutledge  and  Randolph 
to  testify  to  posterity,  if  not  to  the  men  of 
their  own  time,  of  the  great  part  which  Wilson 
had  secretly  played  in  the  drama  of  the  Con- 
stitution, if  he  was  the  author  of  the  draught, 
200 


WILSON  AND  EANDOLPH  DRAUGHTS 

But  Rutledge  lived  two  years,  and  Ellsworth 
nine  years,  and  Randolph  fifteen  years,  and 
gave  no  sign. 

Against  such  conjectures  too  there  is  the 
record  of  the  other  draught,  a  series  of  incon- 
testible  facts,  each  consistent  with  those  that 
had  gone  before  it  and  with  those  which  were 
to  come  after  it.  Pinckney  prepared  a 
draught;  it  was  presented  to  the  Convention; 
it  was  referred  to  the  Committee  of  the  Whole, 
and  thereby  made  accessible  to  every  member 
of  the  Convention ;  it  was  referred  to  the  Com- 
mittee of  Detail  and  thereby  placed  at  the  dis- 
posal of  the  committee  and  brought  directly 
to  the  notice  and  knowledge  of  every  member ; 
the  Committee  never  returned  it  to  the  Con- 
vention and  it  has  not  been  found  among  the 
papers  of  any  one  of  them;  Pinckney  pub- 
lished a  description  of  it  within  a  month  after 
the  adjournment  of  the  Convention;  and  a 
month  later  republished  the  description  in  a 
newspaper.  In  1818  he  authorized  the  publi- 
cation of  a  paper  which  he  certified  to  be  a 
substantial  copy  of  the  draught;  it  was  im- 
mediately published  with  the  first  publication 
of  the  secret  journal  of  the  Convention  and 

201 


THE  PINCKNEY  DRAUGHT 

widely  disseminated  as  a  public  document;  at 
the  time  of  publication  16  members  of  the  Con- 
vention were  living  who  must  have  desired,  we 
must  assume,  to  see  the  journal  of  the  pro- 
ceedings in  which  they  had  personally  taken 
part;  and  when  they  received  the  journal  re- 
ceived with  it  a  copy  of  Pinckney 's  draught; 
and  yet  when  Pinckney  died  more  than  six 
years  afterwards  no  surviving  member  of  the 
Convention  had  denied  or  questioned  the  ver- 
ity of  the  published  draught. 

There  are  very  few  historical  papers  in  the 
world  which  have  such  a  record  of  publicity 
behind  them  as  Pinckney 's  draught;  and  it  is 
idle  to  attack  such  a  record  with  one  man's 
suspicions  and  another  man's  inferences,  and 
our  own  prejudices  and  conjectures.  Two  in- 
controvertible facts  are  that  at  the  time  when 
these  papers  were  written,  Pinckney 's  draught 
was  in  possession  of  these  same  men,  Wilson, 
Randolph  and  Eutledge,  and  that  they  never 
returned  it  to  the  Convention.  This  exami- 
nation brings  us  round  a  circle  to  the  question 
at  which  we  started,  Did  the  Committee  rightly 
use  the  draught  of  Pinckney,  or  did  Pinckney 
fraudulently  copy  the  Committee's  draught? 

202 


WILSON  AND  RANDOLPH  DRAUGHTS 

The  Randolph  and  Wilson  draughts  bring 
the  case  into  this  situation : 

1.  Randolph,  Wilson  and  Rutledge  were  the 
working    members    of    the    Committee    and 
worked  together.     All  that  was  done  with  the 
pen,  so  far  as  we  know,  was  done  by  them. 
Wilson  was  the  ready  writer  of  the  Committee 
and  had  before  him,  when  he  wrote  his  final 
draught,   his   own   preliminary   draught   and 
Randolph's  draught  and  Pinckney's  draught. 

2.  The  final  draught  of  Wilson  was  not  be- 
gun until  after  his  own  preliminary  draught 
was   finished.     The   43   amendments   of  Rut- 
ledge  came  later  and  were  all  subsequently 
considered  and  accepted  by  the  Committee. 

3.  From  an  intellectual  point  of  view  the 
final  draught  of  Wilson  with  the  annotations 
of  Rutledge  came  near  to  being  the  draught  of 
the  Committee  of  Detail;  but  it  was  not  the 
completed  draught  of  the  Committee  even  from 
an  intellectual  point  of  view;  for  additional 
provisions  were  framed  and  the  arrangement 
of  provisions  was  changed  and  the  articles 
were  subdivided  into  sections.     From  a  print- 
er's point  of  view  the  material  for  a  written 

203 


THE  PINCKNEY  DRAUGHT 

draught  which  was  to  be  put  into  type  did  not 
yet  exist. 

4.  If  a  copy  of  the  draught  was  prepared 
for  the  printer   (with  Rutledge's  43  amend- 
ments and  the  additional  provisions  and  the 
rearrangement  of  articles  and  the  subdivision 
of  articles  into  sections  all  engrossed  therein), 
it  is  plain  that  Wilson,  the  hard  worker  of  the 
Committee,  was  the  man  who  did  it.    Wilson 
saved  everything  that  he  wrote  and,  conse- 
quently, saved  his  best.    His  best  is  his  third, 
his  final  draught,  but  it  is  not  the  draught  of 
the  Committee.    If  he  had  prepared  a  copy 
for  the  printer,  it  would  have  been  his  best — 
by  far  the  best  thing  he  did.    It  would  have 
been  returned  to  him  by  the  printer  with  the 
proofs;  and  Wilson  we  may  confidently  con- 
clude (knowing  how  he  saved  even  scraps  of 
his  writing)  would  have  preserved  it. 

5.  The  evidence  relating  to  the  draughts  of 
Randolph  and  Wilson  therefore  closes  with 
the  draught  of  the  Committee  of  Detail  still 
undrawn   and  with  very   little   time   left   in 
which  it  could  be  prepared  for  the  printer. 
When  we  couple  together  the  two  significant 
facts  that  the    Committee's  work   (i.e    their 

204 


WILSON  AND  RANDOLPH  DRAUGHTS 

manual  labor)  ended  before  they  had  prepared 
a  draught  for  the  printer,  and  that  Pinckney's 
draught  which  was  in  their  possession  and  had 
been  used  by  them,  disappeared  during  the 
same  eventful  week,  there  can  be  but  one  in- 
ference— that  the  Committee  used  it. 


205 


CHAPTER  XII 

THE  COMMITTEE  *S  USB  OF  THE  DRAUGHT 

UP  to  this  point  the  subject  of  considera- 
tion has  been  the  charges  preferred  by 
Madison  against  the  copy  of  the  draught  in  the 
State  Department.  I  now  propose  to  press 
the  investigation  in  a  more  positive  way;  to- 
wit,  by  ascertaining  whether  the  Committee  of 
Detail  used  a  draught  of  which  this  is  a  copy 
or  duplicate,  and  to  what  extent  and  in  what 
manner. 

In  copyright  cases  where  the  issue  is  of 
plagiarism,  it  sometimes  happens  that  traces 
of  the  earlier  work  will  be  found  in  the  later 
one,  be  the  language  ever  so  carefully  para- 
phrased and  the  plagiarism  ever  so  carefully 
hidden.  Misspelled  names,  erroneous  dates, 
genealogical  mistakes  which  originated  in  the 
one  and  reappear  in  the  other  are  fateful  wit- 
nesses. If  we  find  such  traces  in  the  work  of 
the  Committee  of  Detail  we  may  follow  them 
as  detectives  follow  clues  until  they  find  the 
206 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

criminal ;  that  is  to  say  until  we  find  to  a  cer- 
tainty that  the  Committee  used  the  draught. 

The  first  of  these  traces  of  Pinckney's  hand 
in  the  Committee's  draught  is  a  very  curious, 
one  inasmuch  as  it  discloses  the  fact  that  in 
one  provision  the  Committee  followed  Pinck- 
ney's  leading  unconsciously,  and  that  their  ac- 
tion was  unauthorized  by  the  Convention,  if 
not  in  violation  of  their  positive  instructions 
twice  repeated.  The  subject,  the  pay  of  Sena- 
tors and  Eepresentatives,  had  been  much  dis- 
cussed; but  neither  in  the  Committee  of  the 
Whole  nor  in  the  Convention  had  it  ever  been 
voted  that  the  compensation  should  be  either 
"determined"  or  "paid"  by  the  States.  The 
proceedings  of  the  Convention  in  regard  to 
this  have  been  examined  at  length  in  the  pre- 
ceding chapter  and  the  details  need  not  be  re- 
peated here.  It  is  enough  to  recall  the  fact 
that  the  Convention  resolved  expressly  that 
the  pay  of  Eepresentatives  should  be  "ade- 
quate," and  by  implication  that  the  pay  of 
Senators  should  likewise  be  adequate ;  and  that 
the  Committee  of  the  Whole  had  previously  re- 
solved that  both  should  be  paid  out  of  "the 
public  treasury."  How  the  Committee  of  De- 

207 


THE  PINCKNEY  DRAUGHT 

tail  could  have  so  reversed  the  determina- 
tion of  the  Convention  as  to  provide  that  the 
members  of  both  Houses  should  receive  a  com- 
pensation not  necessarily  " adequate "  and  "to 
be  ascertained"  as  well  as  "paid"  by  the 
State  "in  which  they  shall  be  chosen"  is  ex- 
plicable in  only  one  way;  to-wit: 

Pinckney 's  draught  likewise  declared,  also 
in  a  single  provision  (art.  6  )that  "the  mem- 
bers shall  be  paid  for  their  services  by  the 
States  which  they  represent."  There  is  a 
verbal  difference  between  the  Committee's 
draught  and  the  copy  of  the  Pinckney  draught 
in  the  State  Department,  a  bettering  of  the 
English,  which  was  done  by  Wilson  as  we  have 
already  seen  in  his  draught  and  it  is  certain 
that  the  Committee  reported  to  the  Conven- 
tion a  provision  substantially  that  of  the 
Pinckney  draught,  a  provision  which  the  Con- 
vention had  more  than  once  rejected.  If  the 
Pinckney  draught  was  used  as  copy  for  the 
printer,  it  is  plain  enough  that  the  clause  of 
six  words  "by  the  States  which  they  repre- 
sent" may  have  misled  the  Committee.  With 
the  many  propositions  which  they  had  to  codify 
and  the  brief  time  within  which  the  work  must 
208 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

be  done;  and  the  confused  and  somewhat  con- 
tradictory action  of  the  Committee  of  the 
Whole  and  the  Convention  in  June,  and  the  di- 
vided responsibility  and  scrutiny  of  five  men,  it 
is  easily  possible  that  the  Committee  were  mis- 
led by  the  provision  in  the  Pinckney  draught ; 
but  it  is  not  possible  that  they  could  have  been 
so  misled  if  there  had  been  no  Pinckney 
draught  and  they  had  followed  the  3d  and  4th 
resolutions  and  borne  in  mind  the  action  of 
the  Convention  and  the  words  of  its  leading 
members. 

A  second  deviation  from  the  instructions 
given  by  the  Convention  relates  to  the  pay- 
ment of  the  Executive.  The  12th  resolution 
says  that  the  Executive  is  "to  receive  a  fixed 
compensation  for  the  devotion  of  his  time  to 
the  public  service  to  be  paid  out  of  the  public 
treasury."  The  Pinckney  draught  (art.  8) 
says  that  the  President  "shall  receive  a  com- 
pensation which  shall  not  be  increased  or 
diminished  during  his  continuation  in  office " 
and  stops  there.  The  draught  of  the  Commit- 
tee (art.  X  sec.  2)  says  "He  shall,  at  stated 
times  receive  for  his  services  a  compensation, 
which  shall  neither  be  increased  nor  dimin- 

209 


THE  PINCKNEY  DRAUGHT 

ished  during  his  continuance  in  office, "  and 
stops  there.  In  a  word  we  find  here  Pinck- 
ney's  language  with  a  word  or  two  of  amplifi- 
cation, and  a  little  correction  (the  kind  of  devi- 
ation which  one  may  expect  to  find  in  the  revi- 
sion of  a  statute  or  legal  document)  and  we 
find  (as  in  Pinckney)  the  important  word 
"fixed"  omitted,  and  the  not  "increased  or 
diminished"  clause  of  Pinckney  inserted,  and 
the  provision  stopping  as  Pinckney  stops, 
without  the  concluding  words  of  the  resolu- 
tion "to  be  paid  out  of  the  public  treasury." 
There  is  here  too  much  resemblance  to  Pinck- 
ney and  too  little  adherence  to  the  12th  resolu- 
tion to  leave  a  doubt  as  to  where  the  Commit- 
tee's provision  came  from. 

A  more  notable  instance  relates  to  the  ap- 
pointing and  treaty-making  power  of  the  Sen- 
ate. The  14th  resolution  declares  that  the 
judges  of  the  "Supreme  tribunal  shall  be  ap- 
pointed by  the  second  branch"  i.e.  the  Senate. 
But  the  draught  of  the  Committee  says  (art. 
IX),  "The  Senate  of  the  United  States  shall 
have  power  to  make  treaties,  and  appoint  Am- 
bassadors and  judges  of  the  Supreme  Court." 
How  came  the  Committee  to  invest  the  Senate 

210 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

with  power  to  make  treaties  and  appoint  am- 
bassadors when  no  such  authority  was  con- 
ferred by  the  resolutions  and  no  such  deter- 
mination had  been  reached  in  the  Convention? 
Pinckney's  draught  answers  the  question, 
(art.  7)  the  Senate,  it  says,  shall  have  the  sole 
and  exclusive  power  "to  make  treaties;  and  to 
appoint  ambassadors  and  other  ministers  to 
foreign  nations,  and  judges  of  the  Supreme 
Court. ' '  Here  the  Committee  placed  the  whole 
treaty-making  power  and  the  diplomatic  inter- 
course with  foreign  nations  entirely  in  the 
hands  of  the  Senate  and  for  no  other  reason 
than  that  Pinckney  had  already  done  so.  Such 
an  extension  of  their  work  beyond  their  author- 
ity could  not  have  suggested  itself.  Evi- 
dently when  adapting  Pinckney's  work  to  their 
own  purposes  they  neglected  to  strike  out 
"treaties"  and  "ambassadors." 

In  Pinckney's  draught  is  set  forth  (art.  3) 
"The  House  of  Delegates  shall  exclusively  pos- 
sess the  power  of  impeachment,  and  shall 
choose  its  own  officers ;  and  vacancies  shall  be 
supplied  by  the  executive  authority  of  the 
State  in  the  representation  from  which  they 
shall  happen."  And  in  the  Committee's 
211 


THE  PINCKNEY  DEAUGHT 

draught  it  is  similarly  set  forth  (art.  IV,  sec. 
6,  7)  "The  House  of  Eepresentatives  shall 
have  the  sole  power  of  impeachment.  It  shall 
choose  its  speaker  and  other  officers.  Vacan- 
cies in  the  House  of  Representatives  shall  be 
supplied  by  writs  of  election  from  the  execu- 
tive authority  of  the  State  in  the  representa- 
tion from  which  they  shall  happen"  (sec.  7). 
These  incongruous  things  Pinckney  threw  to- 
gether in  a  single  sentence.  The  Committee 
placed  two  of  them  in  one  section  and  the  third 
in  another,  and  amplified  and  corrected  as  us- 
ual; but  not  one  of  these  powers  is  enumer- 
ated in  the  twenty-three  resolutions;  and  let 
it  also  be  noted  that  the  peculiar  and  awkward 
phraseology,  "the  executive  authority  of  the 
State  in  the  representation  from  which  they 
shall  happen"  is  in  both. 

While  the  uses  and  misuses  of  the  Pinckney 
draught  conclusively  establish  the  fact  that  the 
Committee  of  Detail  did  use  it  and  frequently 
adhere  to  its  text,  a  more  comprehensive  and 
just  idea  of  the  service  which  Pinckney  ren- 
dered and  the  manner  in  which  his  draught 
was  used  in  the  formation  of  the  Constitution 
will  be  obtained  by  placing  ourselves  in  the 

212 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

place  of  the  Committee  and  using  it  as  they 
must  have  used  it. 

At  the  convening  of  the  Committee  the 
draught  which  had  been  referred  by  the  Con- 
vention was  before  them.  It  was  the  only 
draught  of  the  proposed  constitution  which 
had  been  prepared  by  anyone — the  only  instru- 
ment or  document,  so  far  as  our  knowledge 
goes,  which  could  be  used  by  them  as  a  pattern 
or  basis  for  their  work.  Unquestionably  the 
Committee  sooner  or  later  would  take  up  this 
one  instrument  of  its  kind  and  ascertain  how 
far  it  would  serve  their  purpose. 

The  preamble  is  the  first  and  chief  sentence 
in  the  Constitution ;  for  it  declares  the  source 
and  supremacy  of  its  authority.  "We  the 
people  of  the  United  States"  "do  ordain,  de- 
clare and  establish  this  Constitution. ' '  The 
preamble  goes  behind  State  governments,  ask- 
ing nothing  from  them,  either  of  authority  or 
consent,  and  invokes  the  power  which  estab- 
lished them,  the  people  of  the  United  States. 
This  supreme  power,  if  the  Constitution  should 
be  adopted,  would  allow  States  and  State  gov- 
ernments to  continue  to  exist,  but  to  exist  sub- 
ordinate to  a  new  power,  the  Constitution  of 

213 


THE  PINCKNEY  DRAUGHT 

the  United  States  and  as  parts  and  not  units. 
In  the  first  letter  which  Madison  (then  in  New 
York)  wrote  to  Jefferson  (then  in  Paris)  after 
the  adjournment  of  the  Convention,  he  said: 

"It  was  generally  agreed  that  the  object  of 
the  Union  could  not  be  secured  by  any  system 
founded  on  the  principle  of  a  confederation  of 
Sovereign  States.  A  voluntary  observance  of 
the  federal  law  by  all  the  members  could  never 
be  hoped  for.  A  compulsive  one  could  evi- 
dently never  be  reduced  to  practice,  and  if  it 
could,  involved  equal  calamities  to  the  inno- 
cent and  the  guilty,  the  necessity  of  a  military 
force,  both  obnoxious  and  dangerous,  and,  in 
general,  a  scene  resembling  much  more  a  civil 
war  than  the  administration  of  a  regular  gov- 
ernment. 

"  Hence  was  embraced  the  alternative  of  a 
government  which,  instead  of  operating  on  the 
States,  should  operate  without  their  interven- 
tion on  the  individuals  composing  them;  and 
hence  the  change  in  the  principle  and  propor- 
tion of  representation. ' ' 

The  chief  idea  of  the  preamble  is  not  set 
forth  in  any  resolution  or  act  of  the  Conven- 
214 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

tion;  and  no  instruction  so  to  declare  the 
source  of  authority  was  given  to  the  Commit- 
tee of  Detail.  The  preamble  belongs  exclu- 
sively to  Pinckney,  though  its  words  as  we 
have  before  seen,  were  taken  from  the  pream- 
ble of  the  constitution  of  Massachusetts. 
Chap.  XI. 

The  only  amendment  which  the  Committee 
of  Detail  made,  was  in  the  last  line  of  Pinck- 
ney 's,  the  insertion  of  a  single  word  "our," — 
"for  the  government  of  ourselves  and  our  pos- 
terity." With  the  exception  of  this  word  the 
Committee  took  Pinckney 's  preamble  as  they 
found  it,  and  so  reported  it  to  the  Convention. 
During  the  subsequent  sittings  of  the  Conven- 
tion it  remained  unamended  and  unques- 
tioned and  undiscussed  until  at  last  it  received 
the  final  touch  of  the  Committee  of  Style. 

In  article  1  Pinckney  followed  in  part  the 
Articles  of  Confederation  and  in  part  the  Con- 
stitution of  New  York:  "The  stile  of  this 
Government  shall  be  the  United  States  of 
America,  and  the  Government  shall  consist  of 
supreme  legislative,  Executive  and  judicial 


powers. 


1 1 


This  the  Committee  broke  into  two  articles 
215 


THE  PINCKNEY  DBAUGHT 

and  in  the  first  line  changed  "this"  to  "the" 
but  made  no  other  change. 

Article  2  relates  to  the  legislative  power  and 
was  taken  by  Pinckney  almost  verbatim  from 
the  constitution  of  New  York.  The  Commit- 
tee changed  ' '  House  of  Delegates  "  to  "  House 
of  Bepresentatives,"  and  filled  a  blank  with 
"first  Monday  in  December, "  and  in  place  of 
two  "houses"  said  two  "distinct  bodies  of 
men,"  and  introduced  a  needless  provision 
that  each  house  l '  shall  in  all  cases  have  a  nega- 
tive upon  the  other." 

Article  3  relates  to  members  of  the  "house 
of  delegates  " ;  to  the  term  of  office,  to  the  qual- 
ifications of  the  electors,  to  the  qualifications 
of  members,  to  their  apportionment  among  the 
States,  to  their  proportion  with  population,  to 
"money  bills,"  impeachment,  the  choosing  of 
their  own  officers,  and  to  vacancies.  Here  the 
Committee's  method  of  breaking  an  ar- 
ticle into  sections  begins.  But  the  seven 
sections  of  the  Committee 's  follow  in  the  same 
order  and  almost  in  the  same  words,  the 
sentences  of  Pinckney.  The  article,  like 
Pinckney 's,  begins  with,  "The  members  of  the 

216 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

house ";  and  ends,  like  his,  "in  the  representa- 
tion from  which  they  shall  happen. " 

Article  4  relates  to  the  Senate,  and  here  first 
appear  the  individual  opinions  of  Pinckney 
which  were  shared  by  no  one.  His  senators 
were  to  be  chosen  by  the  House  of  Delegates. 
"From  among  the  citizens  and  residents  of 
New  Hampshire" — "from  among  those  from 
Massachusetts" — etc.,  etc.  That  is  the  repre- 
sentation was  neither  by  States  nor  by  popu- 
lation but  by  an  arbitrary  assignment  in  the 
Constitution.  Pinckney  believed  that  the  Sen- 
ate should  represent  the  wealth  of  the  coun- 
try, and  he  probably  intended  that  this  arbi- 
trary assignment  should  be  representative  of 
wealth.  The  senators  from  New  Hampshire, 
Massachusetts,  Ehode  Island  and  Connecticut 
were  to  form  one  class ;  those  from  New  York, 
New  Jersey,  Pennsylvania  and  Delaware  an- 
other; and  the  remaining  States  a  third.  It 
was  to  be  determined  by  lot  which  should  go 
out  of  office  first,  which  second,  which  third. 
As  their  times  of  service  expired  the  House  of 
Delegates  was  to  fill  them  for  a  fixed  and  uni- 
form term.  This  plan  was  suggested  to 

217 


THE  PINCKNEY  DEAUGHT 

Pinckney  by  the  constitution  of  New  York. 
Its  only  merit  was  that  it  would  make  the  Sen- 
ate a  continuing  body,  as  we  now  have  it,  one- 
third  of  the  members  going  out  at  one  time. 
Its  errors  seem  incredible.  It  would  have  en- 
abled the  delegates  from,  say,  the  eastern  and 
middle  States  to  choose  senators  who  would 
grossly  misrepresent  the  southern  States; 
with  every  change  in  the  political  supremacy 
of  the  House  one-third  of  the  senators  would 
change,  and  one-third  of  the  country  might  be 
represented  by  new  and  inexperienced  men; 
with  the  people  of  a  section  of  one  political 
faith,  their  senators,  chosen  for  them  by  the 
House  of  Delegates,  might  be  of  the  opposite 
political  belief.  It  is  plain  that  when  the  Com- 
mittee came  to  Pinckney 's  Article  4  they 
found  something  which  would  be  of  no  use  to 
them.  The  Convention  had  already  marked 
out  their  work — the  senatorial  system  which 
we  still  have — each  State  represented  by  two 
senators,  each  senator  having  an  individual 
vote,  the  senators  chosen  by  the  legislatures  of 
the  several  States.  Yet  even  this  article  re- 
lating to  Pinckney 's  senate,  the  Committee 
used,  and  used  in  a  way  which  indicates  that 

218 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

they  took  the  paper  upon  which  it  was  written 
and  made  it  serve  their  purpose  in  framing 
their  hurried  draught.  Art.  V. 

Pinckney 's  article  begins:  "The  senate  shall 
be  elected  and  chosen  by  the;"  and  the  Com- 
mittee's begins:  "The  senate  of  the  United 
States  shall  be  chosen  by  the."  At  this  point 
the  Committee  struck  out  the  equivalent  of 
222  words  from  the  Pinckney  article  and  in- 
terlined about  half  the  number,  120  words. 
(The  large  imperial  unruled  foolscap  with 
lines  well  apart  and  the  broad  margin  readily 
admitted  of  this  being  done.)  But  the  in- 
stant that  the  necessarily  new  matter  was 
interlined,  the  Committee  resumed  with  Pinck- 
ney 's  words.  His  ' '  Each  senator  shall  be 

years  of  age"  etc.,  etc.,  becomes  their  "Every 
member  of  the  senate  shall  be  of  the  age  of 
thirty  years  at  least"  etc.,  etc.  Then  follow 
Pinckney 's  provisions  concerning  citizenship, 
concerning  the  prior  period  of  a  senator's  citi- 
zenship, concerning  residence,  the  article  clos- 
ing as  Pinckney 's  closes,  "The  Senate  shall 
choose  its  own  President  and  other  officers." 
Here  we  have  the  two  most  dissimilar  articles 
in  the  two  draughts  beginning  with  the  same 

219 


THE  PINCKNEY  DRAUGHT 

words,  ending  with  the  same  words,  contain- 
ing the  same  provisions,  following  the  same 
order,  and  differing  only  where  the  instruc- 
tions of  the  Convention  compelled  the  Com- 
mittee to  strike  out  a  large  and  important  por- 
tion of  the  earlier  draught  and  to  insert  a  new 
and  important  substitute.  If  the  Committee 
were  rewriting  the  article,  there  would  be  no 
reason  for  this  extraordinary  closeness  of  ad- 
herence— for  this  moving  pari  passu — for 
this  going  always  as  far  and  never  farther 
over  the  ground  traversed. 

Article  5  of  the  Pinckney  draught  is  notable 
for  containing  the  veto  power.  The  Conven- 
tion grouped  it  in  the  23  resolutions  with  the 
powers  of  the  Executive;  Wilson  made  of  it 
an  entire,  independent  article,  but  Pinckney 
who  had  taken  it,  as  we  have  before  seen,  from 
the  constitution  of  New  York,  retained  its  re- 
visionary  character  and  placed  it  at  the  end  of 
an  article  relating  to  the  legislature  and  legis- 
lative business.  The  Committee  left  it  where 
Pinckney  placed  it  (Article  VI,  sec.  13)  as 
we  have  seen  in  the  preceding  chapter;  and 
in  this  as  we  have  also  seen  in  the  preceding 

220 


COMMITTEE'S  USE  OF  THE  DRAUGHT 

chapter  the  Committee  followed  Pinckney  and 
did  not  follow  Wilson. 

The  6th  article  contains  another  singular 
instance  of  an  oversight  of  Pinckney 's  which 
the  Committee  followed.  In  it  he  gathers  to- 
gether with  care  and  patience  from  the 
Articles  of  Confederation  and  from  State  Con- 
stitutions the  incidental  powers  of  Congress. 
The  governing  clause  is,  "The  Legislature  of 
the  United  States  shall  have  the  power." 
Then  follow  some  22  declarations  of  power, 
properly  paragraphed:  "To  lay  and  collect 
taxes,  duties,  imposts  and  excises."  "To 
regulate  commerce"  etc.,  etc.,  until  in  a  final 
paragraph  he  sums  up  and  closes  the  record 
of  these  powers  by  the  paragraph,  "And  to 
make  all  laws  for  carrying  the  foregoing 
powers  into  execution."  The  power  to  pun- 
ish treason  Pinckney  placed  in  a  distinct  para- 
graph for  reasons  stated  in  chapter  XI.  But 
this  compelled  him  to  rewrite  the  governing 
clause,  ' '  The  Legislature  of  the  United  States 
shall  have  the  power."  In  the  same  sentence 
he  appended  the  definition  of  treason,  "which 
shall  consist  only  in  levying  war  against  the 
United  States"  etc.  And  he  then  (following 

221 


THE  PINCKNEY  DEAUGHT 

the  Act  of  Edward  III),  in  a  separate  sentence 
imposed  this  condition  upon  conviction  of 
treason  that  it  shall  be  "but  by  the  testimony 
of  two  witnesses."  What  Pinckney  should 
have  done  was  what  Wilson  did;  he  should 
have  placed  this  power  with  the  others  under 
the  first  governing  clause,  "The  Legislature 
of  the  United  States  shall  have  the  power," 
and  have  pushed  the  limitations  upon  that 
power  over  with  those  relating  to  "the  sub- 
ject of  religion,"  "the  liberty  of  the  press" 
and  "the  writ  of  habeas  corpus,"  into  a  bill 
of  rights. 

This  oversight  of  Pinckney 's,  the  Commit- 
tee of  Detail  attempted  to  hide  but  not  to 
rectify.  The  needless  duplication  of  the 
words,  "The  Legislature  of  the  United  States 
shall  have  the  power,"  they  pushed  out  of 
sight  by  inverting  the  provisions  of  the  sen- 
tence and  defining  treason  first;  but  they  re- 
tained it;  and  also  in  this  article,  properly 
relating  only  to  legislative  powers,  they  re- 
tained the  condition  laid  upon  the  judiciary 
that  "no  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses" 
(Article  VII,  sec.  2),  and  in  doing  these  things, 
222 


COMMITTEE'S  USE  OF  THE  DE AUGHT 

the  Committee  overruled  Wilson  and  followed 
Pinckney. 

It  is  manifest,  therefore,  that  the  two 
draughts,  the  draught  in  the  State  Depart- 
ment and  the  draught  of  the  Committee,  are 
built  upon  the  same  framework.  That  is  to 
say  in  structure,  arrangement,  form  and  order 
the  two  are  identical,  the  one  the  basis  of 
the  other.  In  other  words,  the  Committee 
took  the  draught  which  had  been  referred  to 
them,  and  worked  upon  it,  beginning  with  the 
preamble,  and  continuing  to  the  last  sentence, 

"The  ratification  of  the  conventions  of 

States  shall  be  sufficient  for  organizing  this 
Constitution."  They  amended,  changed,  sub- 
stituted, subdivided  (articles  into  sections), 
and  amplified;  but  it  was  always  Pinckney 's 
draught  which  they  worked  upon.  They  re- 
tained every  provision  of  his  which  was 
authorized  by  the  instructions  of  the  Conven- 
tion, and  some  which  were  beyond  the  scope 
of  the  instructions  and  a  few  which  were  con- 
trary to  the  instructions;  and  whenever  they 
retained  a  provision,  they  retained,  substan- 
tially, the  language  in  which  it  had  been  cast 
by  Pinckney.  As  in  mathematics  it  is  held  to 

223 


THE  PINCKNEY  DRAUGHT 

be  self-evident  that  things  which  are  equal  to 
the  same  thing  are  equal  to  each  other,  so  here 
it  may  be  said  that  this  extraordinary  identity 
of  the  draught  in  the  State  Department  and 
the  draught  of  the  Committee  of  Detail  dem- 
onstrates that  the  draught  in  the  State  De- 
partment is  a  true  and  substantially  exact 
duplicate  of  the  lost  draught  which  was  re- 
ferred to  the  Committee. 


224 


CHAPTER  XIII 

WHAT  BECAME  OF  THE  DRAUGHT 

A  QUESTION  of  much  interest  follows 
the  foregoing  investigation;  to-wit,  why 
was  not  the  Pinckney  draught  found  among 
the  records  and  papers  of  the  Convention? 

It  was  the  only  draught  of  a  constitution 
which  had  been  before  the  Convention;  it  had 
been  referred  to  the  Committee  of  the  Whole 
and  referred  to  the  committee  charged  with 
the  duty  of  preparing  a  draught  of  the  Con- 
stitution; and  that  committee  had  used  it  for 
that  purpose.  It  was  a  paper  of  unique  char- 
acter and  unquestionable  importance  and  one 
of  the  records  of  the  Convention.  Why  was  it 
not  found  in  the  sealed  package  of  the  Con- 
vention's records? 

And  there  was  another  paper,  which  should 
have  been  found  but  was  not.  This  was  the 
report  of  the  Committee  of  Detail,  containing, 
or  accompanying,  their  draught  of  a  Constitu- 
tion. The  absence  of  any  other  paper  that 

225 


THE  PINCKNEY  DRAUGHT 

should  have  been  placed  in  the  package  might 
be  strange,  yet  not  significant.  But  these 
two  papers,  if  there  were  two,  related  to  the 
same  subject,  contained  more  or  less  the  same 
provisions,  had  been  used  for  the  same  most 
important  purpose  by  the  same  men,  and  were 
on  the  6th  of  August,  1787,  if  they  then  ex- 
isted, in  the  possession  and  official  custody  of 
the  Committee  of  Detail.  When  Eutledge  on 
the  morning  of  that  day  "delivered  in"  the 
most  important  report  ever  laid  before  the 
Convention  he  should  have  laid  upon  the  Sec- 
retary's desk  those  two  papers,  if  there  were 
such  to  lay  there.  Yet  neither  Pinckney's 
draught  of  the  Constitution,  nor  the  Commit- 
tee's draught  of  the  Constitution,  was  found 
in  the  sealed  package ;  nothing  was  found  but 
one  printed  copy  of  the  Committee's  draught. 
The  draught  of  the  Committee  of  Detail  was 
the  most  important  of  all  the  papers  of  the 
Convention,  for  the  reason  that  it  was  the 
embodiment  of  all  that  had  been  done  during 
the  first  period  of  the  Convention's  work,  the 
abstract  stage,  and  was  to  be  the  foundation 
of  all  that  was  yet  to  be  done  in  bringing  the 
Constitution  to  its  concrete  and  final  form. 
226 


WHAT  BECAME  OF  THE  DRAUGHT 

For  purposes  of  construction  and  interpreta- 
tion the  draught  is  the  most  valuable  paper 
that  exists  or  that  ever  did  exist,  inasmuch  as 
it  sets  forth  in  a  tangible,  practical,  unmistak- 
able form  the  results  so  far  attained  and  the 
views  which  a  majority  of  the  members  held, 
and  the  conclusions  which  a  majority  of  the 
States  had  reached  when  the  work  of  ab- 
stract consideration  ceased,  and  the  work  of 
changing  their  abstract  ideas  into  the  concrete 
provisions  of  the  Constitution  began.  There 
was  no  other  report,  draught  or  document 
which  should  have  been  so  watchfully  guarded 
and  carefully  kept  as  the  report  of  the  Com- 
mittee of  Detail,  if  there  were  indeed  such  a 
document  to  preserve. 

To  comprehend  and  appreciate  the  signifi- 
cance of  the  disappearance  of  these  two 
papers,  it  is  necessary  that  we  understand 
the  conditions  of  the  case — the  circumstances 
which  tended  toward '  their  destruction,  and 
those  which  should  have  secured  their  preser- 
vation. 

The  first  of  these  conditions  was  secrecy. 
The  Convention  early  determined  ' '  That  noth- 
ing spoken  in  the  House  be  printed  or  other- 

227 


THE  PINCKNEY  DRAUGHT 

wise  published  or  communicated  without 
leave."  No  reporter  was  present  at  the  sit- 
tings of  the  Convention;  no  stenographer, 
typewriter  or  amanuensis  served  the  mem- 
bers ;  no  clerical  force  aided  the  Committee  of 
Detail.  The  secrets  of  the  Convention  were  in 
the  custody  of  the  members,  and  from  the  29th 
of  May  to  the  17th  of  September  not  one  was 
revealed  to  the  expectant,  inquisitive,  anxious 
American  world. 

As  the  work  of  the  Convention  drew  to- 
ward its  close,  it  was  determined  that  the  ob- 
ligation of  secrecy  should  be  continued  into 
the  indefinite  future.  The  records  were  to  be 
placed  under  seal  and  the  custodian  was  to  be 
Washington  himself.  Washington  asked  what 
should  be  done  with  the  records ;  and  the  Con- 
vention answered  that  "he  retain  the  Journal 
and  other  papers  subject  to  the  orders  of 
Congress,  if  ever  formed  under  the  Constitu- 
tion." For  thirty  years  and  more  the  seals 
remained  unbroken ;  and  for  thirty  years  and 
more  no  member  of  the  Convention  spoke. 

Let  the  reader  imagine,  if  he  can,  what 
would  be  the  public  feeling  now,  if  a  conven- 
tion should  be  sitting  from  the  29th  of  May  to 
228 


WHAT  BECAME  OF  THE  DEAUGHT 

the  17th  of  September  to  frame  a  new  consti- 
tution for  the  United  States  which  should  sit 
with  closed  doors,  and  whose  members  should 
disclose  no  act,  speak  no  word,  drop  no  hint 
from  the  beginning  to  the  end ;  and  who,  when 
the  end  was  reached,  should  say  absolutely 
nothing  of  what  had  been  said  and  done  in  the 
secret  proceedings  of  the  Convention.  We 
owe  much  to  the  framers  of  the  Constitution; 
they  were  not  common  men. 

The  first  and  highest  instance  of  this  sense 
of  obligation  is  where  we  should  expect  to 
find  it,  in  the  personal  journal  of  Washing- 
ton. 

"Friday,  1st  June. 

"Attending  in  Convention — and  nothing 
being  suffered  to  transpire  no  minute  of  the 
proceedings  has  been,  or  will  be  inserted  in 
this  diary." 

And  for  this  reason,  no  member  of  the  Com- 
mittee wrote.  The  unfortunate  Observations 
of  Pinckney  were  the  only  publication  that 
gave  a  glimmer  of  what  had  been  done,  or 
might  have  been  done  in  the  Convention — of 
what  had  been  said  or  might  have  been  said. 

229 


THE  PINCKNEY  DEAUGHT 

The  Journal  of  Madison  was  not  published 
until  after  Congress  had  released  the  secrets 
of  the  Convention.  The  members  had  taken 
no  solemn  oath,  nor  clasped  hands  nor  pledged 
their  honor  to  each  other,  but  they  kept 
silence. 

A  single  incident  fortunately  preserved  by 
William  Pierce  of  Georgia  will  show  how  the 
obligation  was  regarded  during  the  sitting  of 
the  Convention.  It  grandly  displays  the  per- 
sonal majesty  of  Washington,  and  the  value 
which  he  set  upon  the  secrecy  of  the  Conven- 
tion's deliberations.  To  a  better  apprecia- 
tion of  what  took  place  it  must  be  remembered 
that  the  Convention  as  a  mark  of  respect  for 
their  great  presiding  officer  established  this 
rule:  "When  the  House  shall  adjourn,  every 
member  shall  stand  in  his  place  until  the 
President  pass  him.9' 

Mr.  Pierce  says : 

1 '  When  the  Convention  first  opened  at  Phila- 
delphia, there  were  a  number  of  propositions 
brought  forward  as  great  leading  principles 
for  the  new  Government  to  be  established  for 
the  United  States.  A  copy  of  these  proposi- 
tions was  given  to  each  Member  with  an  in- 

230 


WHAT  BECAME  OF  THE  DRAUGHT 

junction  to  keep  everything  a  profound  secret. 
One  morning,  by  accident,  one  of  the  Members 
dropt  his  copy  of  the  propositions,  which 
being  luckily  picked  up  by  General  Mifflin  was 
presented  to  General  Washington,  our  Presi- 
dent, who  put  it  in  his  pocket.  After  the 
Debates  of  the  Day  were  over,  and  the  ques- 
tion for  adjournment  was  called  for,  the  Gen- 
eral arose  from  his  seat,  and  previous  to  his 
putting  the  question  addressed  the  Conven- 
tion in  the  following  manner: — 

'Gentlemen:  I  am  sorry  to  find  some  one 
Member  of  this  Body,  has  been  so  neglectful 
of  the  secrets  of  the  Convention  as  to  drop  in 
the  State  House  a  copy  of  their  proceedings, 
which  by  accident  was  picked  up  and  delivered 
to  me  this  Morning.  I  must  entreat,  Gentle- 
men, to  be  more  careful,  lest  our  transactions 
get  into  the  News  Papers,  and  disturb  the  pub- 
lic repose  by  premature  speculations.  I  know 
not  whose  paper  it  is,  but  there  it  is  (throwing 
it  down  on  the  table),  let  him  who  owns  it  take 
it. '  At  the  same  time  he  bowed,  picked  up  his 
Hat,  and  quitted  the  room  with  a  dignity  so 
severe  that  every  Person  seemed  alarmed ;  for 
my  part  I  was  extremely  so,  for  putting  my 

231 


THE  PINCKNEY  DRAUGHT 

hand  to  my  pocket  I  missed  my  copy  of  the 
same  Paper,  but  advancing  up  to  the  Table  my 
fears  soon  dissipated;  I  found  it  to  be  the 
handwriting  of  another  person.  When  I  went 
to  my  lodgings  in  the  Indian  Queen,  I  found 
my  copy  in  a  coat  pocket  which  I  had  pulled 
off  that  Morning.  It  is  something  remarkable 
that  no  Person  ever  owned  the  Paper."  (3 
Amer.  Hist.  Eeview,  324.) 

The  obligation  of  secrecy  required  that 
these  two  papers  should  not  be  lost — that  they 
should  not  be  left  where  they  might  fall  into 
the  hands  of  someone  who  would  publish  them, 
that  they  should  not  remain  in  the  possession 
of  a  member;  and  the  final  determination  of 
the  Convention  implied  that  these  two  papers 
should  be  delivered  by  the  Committee  of  De- 
tail into  the  hands  of  the  Secretary  of  the 
Convention  and  be  by  him  placed  in  the  cus- 
tody of  Washington. 

The  second  condition  was  time — the  time 
within  which  the  Committee's  work  must  be 
done. 

On  Thursday,  the  24th  of  July,  the  Conven- 
tion appointed  the  Committee  of  Detail  "for 
the  purpose  of  reporting  a  Constitution,"  and 

232 


WHAT  BECAME  OF  THE  DRAUGHT 

on  the  26th,  referred  to  the  Committee  certain 
resolutions  and  "adjourned  until  Monday,  Au- 
gust 6th,  that  the  Committee  of  Detail  might 
have  time  to  prepare  and  report  the  Consti- 
tution." This  adjournment  gave  to  the  Com- 
mittee ten  full  days  in  which  to  prepare  and 
complete  their  draught,  two  of  which  were 
Sundays.  The  committee  moreover  deter- 
mined to  furnish  to  each  member  of  the  Con- 
vention a  printed  copy.  On  Monday,  the  6th 
of  August,  the  Committee  appeared  in  the 
Convention  bringing  with  them  the  printed 
copies  of  the  draught. 

The  draught  contains  about  3,600  words. 
A  good  printer  in  the  olden  days  when  there 
was  not  a  typesetting  machine  in  the  world 
would  have  required  (according  to  the  compu- 
tation of  a  present  day  printer)  three  days  for 
doing  the  work,  allowing  therein  a  reasonable 
time  for  changes  and  corrections  made  in  the 
proofs.  It  cannot  be  supposed  that  after  the 
admonition  of  Washington,  the  Committee 
could  be  negligent  in  their  selection  of  a 
printer.  They  would  not  carry  their  copy 
into  a  large  printing  office,  if  any  such  there 
was  in  Philadelphia,  but  would  surely  place 

233 


THE  PINCKNEY  DRAUGHT 

it  in  the  hands  of  some  individual  printer  rec- 
ommended to  them  as  trustworthy  by  Wilson 
or  Gouverneur  Morris  or  some  other  delegate 
from  Philadelphia,  perchance  by  Franklin,  the 
greatest  printer  in  the  world.  In  a  word,  the 
printing  would  not  have  been  confided  to  a 
shop  full  of  men  but  would  have  been  given  to 
one  man  and  marked  ' '  confidential ' ' ;  and  it  is 
safe  to  say  that  the  copy  must  have  been  in 
the  printer's  hands  by  the  close  of  the  7th 
day.  Besides  the  typesetting,  the  proofs 
were  to  be  examined,  and  the  work  scanned  in 
the  clearer  light  ol  printed  matter  by  every 
member  of  the  committee ;  and  errors  were  to 
be  corrected,  and  possibly  changes  made. 

After  these  ten  days  of  actual  and  con- 
structive work  the  Committee  appeared  in  the 
Convention  bringing  with  them  a  draught  con- 
taining fifty-seven  articles  and  sections,  and 
some  200  constitutional  provisions.  Some  of 
these  provisions  had  been  prescribed  by  the 
23  resolutions,  and  some  had  been  suggested 
by  the  Articles  of  Confederation,  but  there 
were  others  declaratory  of  the  inherent  pow- 
ers of  a  national  sovereignty  which  had  neither 
been  directed  by  the  Convention,  nor  were 

234 


WHAT  BECAME  OF  THE  DRAUGHT 

contained  in  the  Articles  of  Confederation. 
No  reflective  person  beginning  the  study  of 
the  Constitution  can  read  Madison's  Journal 
attentively  through  to  the  26th  of  July  with- 
out being  astonished  by  the  greater  compre- 
hensiveness and  detail  and  breadth  and  com- 
pleteness of  the  draught  which  the  committee 
produced  in  a  printed  form  on  the  morning  of 
the  6th  of  August. 

Besides  the  provisions  in  the  draught  which 
have  passed  into,  and  in  a  literal  or  modified 
form,  have  become  parts  of  the  Constitution, 
there  was  some  work  of  the  committee  which 
must  have  involved  consideration,  discussion, 
and  a  waste  of  time.  These  hindrances  left 
a  perilously  narrowed  period  within  which  a 
committee  must  draught  the  Constitution  of 
the  United  States. 

It  was  therefore  no  time  to  stand  upon  tri- 
fles or  to  pause  to  adjust  formal  niceties. 
Within  the  closed  doors  of  Independence  Hall 
would  be  impatient  men  who  had  given  their 
time  since  the  25th  of  May  and  who  were  sit- 
ting unceasingly  through  the  heat  of  the  Phil- 
adelphia summer,  defraying  in  whole  or  in 
part  their  own  expenses,  though  many  of  them 

235 


THE  PINCKNEY  DRAUGHT 

f 

were  men  of  narrow  means,  ill  able  to  give 
either  their  time  or  their  money.  To  their 
anxious  eyes  the  end  seemed  far  away,  and 
success  far  from  certain,  and  they  would  re- 
sent unnecessary  delay.  It  would  be  just  to 
young,  ambitious  Mr.  Pinckney  to  return  his 
draught,  unsullied,  to  the  Secretary  that  it 
might  tell  the  story  in  future  years,  unques- 
tioned and  unquestionable,  of  his  splendid  con- 
tribution to  the  Constitution.  It  would  be 
proper  and  according  to  parliamentary  usage 
for  the  committee  to  hand  in  their  draught 
in  writing,  covered  by  a  report  attested  by 
their  signatures,  both  of  which  would  remain 
in  the  archives  of  the  Convention  and  perhaps 
in  the  archives  of  a  future  government.  But 
the  committee  could  not  linger  for  these  desir- 
able things.  Pinckney 's  draught  must  be  sac- 
rificed to  hasten  the  good  work  along,  to  save 
time,  if  it  were  but  a  day ;  and  their  own  report 
and  draught  must  be  "delivered  in"  figura- 
tively, that  is  to  say  by  the  mouth  of  their 
chairman  and  by  the  means  of  the  printed 
copies,  one  for  each  member.  The  committee, 
so  all  the  circumstances  unite  in  telling  us,  took 
Pinckney 's  draught  and  considered  it;  some 
236 


WHAT  BECAME  OF  THE  DRAUGHT 

provisions  they  retained ;  some  they  corrected, 
some  they  amended,  some  they  changed,  some 
they  struck  out.  The  amendments  they  wrote 
on  the  broad  margin  of  the  large  foolscap 
sheets  or  wrote  out  on  separate  slips  of  paper 
which  they  wafered  to  the  margin.  When  they 
had  fininshed  this  work  Pinckney's  draught 
had  become  "printer's  copy."  For  one  brief 
week  it  served  a  great  purpose  and  was  the 
most  useful  document  in  the  world.  Then  it 
was  scrupulously  destroyed ;  and  concerning  it 
no  man  of  the  men  who  knew  its  contents  is 
known  to  have  spoken  a  single  word. 

Apart  from  the  inferential  and  conjectural 
statements  of  the  preceding  paragraph,  the 
stricter  principles  of  law  lead  to  or  toward  the 
same  conclusion.  The  draught  was  placed  in 
the  committee's  hands  to  be  used  but  not  to 
be  destroyed.  Nevertheless  the  right  to  use, 
like  the  right  of  eminent  domain,  was  com- 
mensurate with  the  necessities  of  the  situation, 
and  the  committee  might  use  it  by  destroying 
it. 

The  law  allows  within  certain  limitations, 
the  presumption  of  fact  that  where  an  admin- 
istrative officer  had  a  certain,  specific  official 

237 


THE  PINCKNEY  DKAUGHT 

duty  to  perform,  he  performed  it.  The  Secre- 
tary of  the  Convention  and  the  members  of  the 
Committee  of  Detail  were  not  public  officers 
but  were  charged  with  duties  which,  if  not 
official,  were  still  public,  and  the  obligations 
and  presumptions  belonging  to  administrative 
officers  may  properly  be  applied  to  them.  The 
Secretary's  entry  in  the  Journal  of  the  Con- 
vention says,  "The  report  was  then  delivered 
in  at  the  Secretary's  table,  and  being  read 
once  throughout,  and  copies  thereof  given  to 
the  members,  it  was  moved  and  seconded  to 
adjourn."  All  that  there  was  to  be  "deliv- 
ered in,"  was  placed  upon  the  Secretary's 
table,  and  it  became  his  duty  to  preserve  what- 
ever the  Committee  had  placed  there  subject 
to  the  future  commands  of  the  Convention. 
The  "copies  thereof"  were  the  printed  copies 
of  the  draught;  and  "the  report"  which  was 
"then  delivered  in  at  the  Secretary's  table" 
was  one  of  the  printed  copies  accompanied  by 
the  oral  explanation  of  the  chairman. 

What  the  Secretary  did  with  the  papers  in 
his  charge  is  told  in  the  following  note  and 
extract : 

238 


WHAT  BECAME  OF  THE  DRAUGHT 

"MONDAY  EVENING. 

"Major  Jackson  presents  his  most  respectful 
compliments  to  General  Washington.  . 

"Major  Jackson,  after  burning  all  the  loose 
scraps  of  paper  which  belong  to  the  Conven- 
tion, will  this  evening  wait  upon  the  General 
with  the  Journals  and  other  papers  which 
their  vote  directs  to  be  delivered  to  His  Excel- 
lency. ' ' 

Indorsed  by  Washington: 

"From  MAJR  WM.  JACKSON,  17th  Sept., 
1787." 

"MONDAY,  17th. 

"Met  in  Convention  when  the  Constitution 
received  the  unanimous  assent  of  11  States 
and  Coln  Hamilton's,  from  New  York  (the 
only  delegate  from  thence  in  Convention)  and 
was  subscribed  to  by  every  Member  present 
except  Govr  Randolph  and  Coln  Mason  from 
Virginia — -&  Mr.  Gerry  from  Massachusetts. 
The  business  being  thus  closed,  the  Members 
adjourned  to  the  City  Tavern,  dined  together 
and  took  a  cordial  leave  of  each  other. — after 
which  I  returned  to  my  lodgings — did  some 
business  with,  and  received  the  papers  from 

239  , 


THE  PINCKNEY  DRAUGHT 

the  secretary  of  the  Convention,  and  retired 
to  meditate  upon  the  momentous  wk  which 
had  been  executed,  after  not  less  than  five,  for 
a  large  part  of  the  time  six,  and  sometimes  7 
hours  sitting  every  day,  Sundays  &  the  ten 
days'  adjournment  to  give  a  Comee  opportu- 
nity &  time  to  arrange  the  business,  for  more 
than  four  months. "  WASHINGTON'S  DIARY. 

The  Secretary  of  the  Convention  has  gen- 
erally been  censured  as  incompetent  and  negli- 
gent. Nevertheless  the  papers  which  he  trans- 
ferred to  Washington  witness  for  him  that  he 
did  preserve  and  keep  whatever  papers  came 
within  his  official  custody.  The  Secretary  of 
State  certified,  March  19th,  1796,  that  in  addi- 
tion to  the  Journals  then  received  from  Wash- 
ington "were  seven  other  papers  of  no  conse- 
quence in  relation  to  the  proceedings  of  the 
Convention. ' '  One  of  these  is  a  "  draught  of 
the  letter  from  the  Convention  to  Congress  to 
accompany  the  Constitution ";  one  is  an  order 
from  "the  directors  of  the  Library  company 
of  Philadelphia"  to  the  Librarian  directing 
him  to  "furnish  the  gentlemen  who  compose 

240 


WHAT  BECAME  OF  THE  DRAUGHT 

the  Convention  now  sitting  with  such  books  as 
they  may  desire  during  their  continuance  at 
Philadelphia,  taking  receipts  for  the  same"; 
one  is  a  letter  from  "one  of  the  people  called 
Jews"  setting  forth  that  by  the  Constitution 
of  Pennsylvania  "a  Jew  is  deprived  of  hold- 
ing any  publick  office  or  place  of  Government. ' ' 
The  others  are  even  of  less  consequence.  They 
make  plain  by  their  unimportance  the  impor- 
tant fact  that  Major  Jackson  scrupulously  kept 
every  paper  which  Eutledge  "delivered  in  at 
the  Secretary's  table"  on  the  6th  of  August. 
That  is  to  say,  it  is  made  plain  that  on  the  6th 
of  August,  Rutledge  did  not  deliver  in  at  the 
Secretary's  table  either  a  written  report  of 
the  committee  or  the  Pinckney  draught. 

Judging  in  the  light  of  all  the  facts  which 
the  case  discloses  we  must  conclude  that  the 
only  thing  which  would  have  justified  the  Com- 
mittee of  Detail  in  not  returning  the  Pinckney 
draught  to  the  Secretary  of  the  Convention 
was  that  it  had  been  destroyed ;  the  only  thing 
which  would  have  justified  the  Committee  in 
destroying  it,  was  that  they  were  compelled 
to  use  it  as  printer's  copy. 

241 


THE  PINCKNEY  DRAUGHT 

The  Committee  did  well  to  use  it.  And  yet 
if  there  was  one  thing  in  the  world  which  jus- 
tified Pinckney  in  publishing  the  Observations, 
it  was  that  the  Committee  of  Detail  had  de- 
stroyed his  draught. 


242 


CHAPTER  IV 

WHAT  PINCKNEY  DID  FOE  THE  CONSTITUTION 

r  I1HE  style  of  the  Constitution,  we  owe  to 
I  Pinckney.  Behind  him,  perhaps,  was 
Chief  Justice  Jay,  whose  hand  appears  in  the 
first  Constitution  of  New  York,  but  none  of 
the  men  connected  with  the  Convention,  not 
even  Hamilton,  had  attained  what  we  may 
term  the  style  of  the  Constitution — the  clear, 
concise,  declarative,  imperative  style  which 
seems  a  characteristic  part  of  the  great 
instrument.  Pinckney  appreciated  the  differ- 
ence between  a  constitution  and  a  statute  and 
in  maintaining  this  difference  his  hand  rarely 
erred.  The  Committee  of  Detail  corrected 
Pinckney 's  language,  occasionally,  and  some- 
times rendered  the  meaning  more  certain  by 
amplification  but  whenever  they  departed  from 
his  draught,  there  is  an  immediate  falling  off 
in  style.  A  flagrant  instance  of  this  is  in 
article  IX,  sections  2  and  3.  In  the  hands  of 

243 


THE  PINCKNEY  DEAUGHT 

the  Committee  the  provision  relating  to  dis- 
putes and  controversies  between  States  ex- 
pands into  a  string  of  minor  provisions  con- 
taining more  than  400  words  with  all  the 
involved  petty  particularities  of  an  incoher- 
ent statute.  Exempli  gratia,  "The  Senate 
shall  also  assign  a  day  for  the  appearance 
of  the  parties,  by  their  agents  before  that 
house.  The  agents  shall  be  directed  to  ap- 
point, by  joint  consent,  commissions  or  judges 
to  constitute  a  court  for  hearing  and  deter- 
mining the  matter  in  question.  But  if  the 
agents  cannot  agree,  the  Senate  shall  name 
three  persons  out  of  each  of  the  several 
States ;  and  from  the  list  of  such  persons,  each 
party  shall  alternately  strike  out  one,  until 
the  number  shall  be  reduced  to  thirteen;  and 
from  that  number  not  less  than  seven,  nor 
more  than  nine,  names,  as  the  Senate  shall 
direct,  shall  in  their  presence,  be  drawn  out 
by  lot ;  and  the  persons  whose  names  shall  be 
so  drawn,  or  any  five  of  them,  shall  be,"  etc., 
etc.  The  person  who  remembers  that  this  and 
more  like  it,  was  actually  prepared  and 
printed  and  reported  to  the  Convention  as  a 
proposed  part  of  the  Constitution  of  the 

244 


WHAT  PINCKNEY  DID 

United  States,  may  well  wonder  what  kind  of 
a  Constitution  the  Committee  of  Detail  would 
have  framed,  if  they  had  not  had  Pinckney 
to  block  out  their  work  for  them. 

When  dealing  with  the  number  of  repre- 
sentatives in  the  first  or  lower  house,  Pinck- 
ney provided  (Art.  3)  for  a  specific  number 
from  each  State,  in  the  first  instance,  and  then 
by  one  of  his  terse  emphatic  sentences,  "and 
the  legislature  shall  hereafter  regulate  the 
number  of  delegates  by  the  number  of  inhabit- 
ants, according  to  the  provisions  hereinafter 
made  at  the  rate  of  one  for  every thou- 
sand. "  The  Committee  adopted  this  verbatim 
but  they  prefaced  it  with  an  extraordinary  apol- 
ogy or  explanation,  bearing  some  resemblance 
to  the  preamble  of  a  statute  (Art.  14,  sec.  4) : 
"As  the  proportions  of  numbers  in  different 
States  will  alter  from  time  to  time ;  as  some  of 
the  States  may  hereafter  be  divided ;  as  others 
may  be  enlarged  by  addition  of  territory;  as 
two  or  more  states  may  be  united;  as  new 
states  will  be  erected  within  the  limits  of  the 
United  States — the  legislature  shall,  in  each  of 
these  cases,  regulate  the  number  of  representa- 
tives by  the  number  of  inhabitants,  according 

245 


THE  PINCKNEY  DBAUGHT 

to  the  provisions  hereinafter  made,  at  the  rate 
of  one  for  every  forty  thousand. " 

This  "as,"  "as,"  "as,"  "as,"  "as"  would 
be  slovenly  work  even  for  a  statute.  It  sounds 
little  like  a  law,  not  at  all  like  a  constitution, 
much  like  an  extract  from  a  committee's  re- 
port, justifying  their  work,  explaining  why 
a  proposed  provision  may  become  at  some 
unforeseen  time,  necessary  or  desirable. 

It  is  true  that  the  former  of  these  provi- 
sions was  taken  from  the  Articles  of  Confed- 
eration; and  that  the  latter  is  a  paraphrase 
of  the  8th  resolution,  but  that  only  makes  the 
matter  worse.  Their  verbosity  and  incongru- 
ity were  thereby  placed  before  the  eyes  of 
every  member  of  the  Committee ;  and  the  fact 
that  such  provisions,  flagrantly  verbose  and 
inexcusably  incongruous,  went  into  a  draught 
of  the  Constitution  shows  that  not  one  of  the 
five  members  commanded  what  may  be  called 
the  style  of  the  Constitution;  while  the  addi- 
tional fact  that  not  one  instance  of  such  pro- 
lixity of  detail  is  to  be  found  in  the  Pinckney 
draught  shows  that  he  was  the  master  of  its 
style  and  not  the  Committee. 

There  are  unquestionably  clauses  and  sen- 
246 


WHAT  PINCKNEY  DID 

tences  and  provisions  in  the  Committee's 
draught  which  show  the  hand  of  the  thought- 
ful statesman  or  of  the  good  lawyer.  Thus  to 
Pinckney's  provisions  relating  to  the  action 
of  Congress  on  bills  returned  by  the  Presi- 
dent with  his  objections,  we  have,  "But,  in  all 
cases,  the  votes  of  both  Houses  shall  be  de- 
termined by  yeas  and  nays;  and  the  names 
of  the  persons  voting  for  or  against  the  bill 
shall  be  entered  on  the  Journal  of  each  House 
respectively."  And  to  Pinckney's  provisions 
concerning  the  conviction  of  treason,  there 
is  added,  "No  attainder  of  treason  shall  work 
corruption  of  blood,  nor  forfeiture,  except 
during  the  life  of  the  person  attainted."  In 
a  word  there  is  manifestly  more  than  one  hand 
in  the  Committee's  work.  In  Pinckney's 
draught  the  warp  and  woof  is  of  one  texture 
from  beginning  to  end.  Even  when  an  article 
is  made  up  entirely  of  cullings  from  State 
constitutions  and  from  the  Articles  of  Con- 
federation, the  finished  fabric  is  unquestion- 
ably of  Pinckney's  weaving. 

It  is  not  to  be  inferred  that  the  members  of 
the  Comittee  of  Detail  were  mediocre  men  or 
that  they  were  negligent  of  the  grave  duty  as- 

247 


THE  PINCKNEY  DRAUGHT 

signed  to  them.  Yet  the  work  which  they 
actually  did  only  demonstrates  that  for  them 
to  have  produced  a  complete  draught  of  the 
Constitution — as  complete  as  the  one  which 
they  reported — entirely  the  work  of  their  own 
hands,  in  the  limited  time  allowed  them  would 
have  been  an  impossibility.  The  reduction  of 
the  Constitution  to  a  written  form  with  all  its 
details  required  research,  reflection,  patient 
work  and  unhurried  thought.  Through  the 
wide  field  of  State  and  Federal  relations, 
through  State  constitutions  and  the  Articles 
of  Confederation  the  framer  needed  to  search, 
weighing  State  prejudices  and  national  neces- 
sities, taking  what  was  desirable,  but  with 
equal  care  leavng  what  was  objectionable. 
There  were  not  five  men  in  the  world  working 
in  each  other's  way,  discussing  each  other's 
work,  who,  unassisted,  could  have  drawn  up  a 
constitution  in  which  so  much  was  embodied 
and  so  little  overlooked  and  have  brought  their 
patchwork  contributions  into  one  harmonious 
whole  within  the  time  prescribed.  The  coun- 
try was  well  filled  with  men  of  talents,  of  abil- 
ity, of  energy,  of  patriotic  fervor,  with  men 
who  knew  the  conditions  of  our  national  af- 

248 


WHAT  PINCKNEY  DID 

fairs,  the  difficulties  of  acting,  the  perils  of 
inaction,  and  yet  the  fact,  undeniable,  is  that 
only  one  man  foresaw  the  coming  necessity  of 
the  situation  and  had  the  forethought  to  pre- 
pare a  draught  of  the  Constitution  for  the  use 
of  the  Convention.  The  more  I  have  surveyed 
the  situation,  the  greater  has  appeared  the 
necessity  for  some  such  work  at  the  time ;  the 
more  I  have  studied  the  work  of  Pinckney,  the 
more  perfectly  adapted  to  the  necessities  of 
the  situation  does  it  appear  to  have  been. 

"When  Pinckney,  foreseeing  that  a  national 
Convention  would  be  held  and  that  if  it  failed 
to  frame  a  constitution  which  would  give  to 
the  waning  Confederation  the  character  and 
authority  of  nationality,  the  nationality  of  the 
Confederated  States  might  disappear,  he  reso- 
lutely assigned  to  himself  the  task  of  framing 
one  in  which  nationality  should  be  secure  and 
a  national  government  above  and  independent 
of  the  States  be  the  result.  While  yet  a  mem- 
ber of  Congress  he  saw  plainly  these  things — 
that  the  government  of  the  Confederated 
States  was  drifting  toward  insolvency,  for 
New  York  and  Massachusetts  alone  had  paid 
in  full  their  quota  of  the  Federal  expenses; 

249 


THE  PINCKNEY  DEAUGHT 

that  it  was  drifting  towards  war;  for  at  least 
one  of  the  States  was  flagrantly  violating  the 
treaty  of  peace  with  Great  Britain;  that  the 
Congress  could  neither  raise  money  nor  main- 
tain a  treaty;  for  the  only  power  which  it 
practically  possessed  was  to  beseech  the  States 
to  pay  their  respective  shares  of  the  Federal 
expenses,  and  to  pass  as  recently  as  March  21, 
1787,  resolutions  urging  on  the  States  a  repeal 
of  all  laws  contravening  the  treaty  of  peace 
with  Great  Britain. 

Pinckney  was  then  in  the  full  flush  of  youth- 
ful egoism,  but  the  oldest  member  of  the  Con- 
vention, even  Franklin,  could  not  have  chosen 
his  method  of  construction  more  wisely. 
Wherever  constitutional  material  existed, 
Pinckney  found  it,  and  preferred  it  to  his 
own.  A  single  paragraph  will  give  an  effec- 
tive object  lesson  of  his  careful  composite 
work: 

"The  United  States  shall  not  grant  any  title 
of  nobility"  (Art.  Confederation  VI).  "The 
Legislature  of  the  United  States  shall  pass 
no  law  on  the  subject  of  religion"  (Consti- 
tution of  New  York) ;  "nor  touching  or  abridg- 
ing the  liberty  of  the  press"  (Constitution 

250 


WHAT  PINCKNEY  DID 

Massachusetts);  "nor  shall  the  privilege  of 
the  writ  of  habeas  corpus  ever  be  suspended 
except  in  case  of  rebellion  or  invasion"  (Con- 
stitution Mass.). 

The  resolution  of  March  21,  1787  is  as  fol- 
lows: 

"WEDNESDAY,  MARCH  21,  1787. 
"Kesolved,  That  the  legislatures  of  the  sev- 
eral states  cannot  of  right  pass  any  act  or 
acts,  for  interpreting,  explaining,  or  constru- 
ing a  national  treaty  or  any  part  or  clause 
of  it;  nor  for  restraining,  limiting  or  in  any 
manner  impeding,  retarding  or  counteracting 
the  operation  and  execution  of  the  same,  for 
that  on  being  constitutionally  made,  ratified 
and  published,  they  become  in  virtue  of  the 
confederation,  part  of  the  law  of  the  land,  and 
are  not  only  independent  of  the  will  and 
power  of  such  legislatures,  but  also  binding 
and  obligatory  on  them." 

This  becomes  in  the  draught: 

"All  acts  made  by  the  Legislature  of  the 
United  States,  pursuant  to  this  Constitution, 
and  all  Treaties  made  under  the  authority  of 
the  United  States,  shall  be  the  Supreme  Law 

251 


THE  PINCKNEY  DEAUGHT 

of  the  Land ;  and  all  Judges  shall  be  bound  to 
consider  them  as  such  in  their  decisions." 

I  have  spoken  of  the  sentence,  "The  citi- 
zens of  each  State  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  citizens  in  the  several 
States"  as  the  most  felicitous  sentence  in  the 
Constitution,  which  passed  through  the  Com- 
mittee of  Detail,  the  Committee  of  Style,  and 
the  Convention  without  the  change  of  a  single 
word.  But  in  the  Articles  of  Confederation 
the  provision  stood  in  this  prolix  form: 

"The  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the 
people  of  the  different  States  in  this  union,  the 
free  inhabitants  of  each  of  these  States,  pau- 
pers, vagabonds,  and  fugitives  from  Justice 
excepted,  shall  be  entitled  to  all  privileges  and 
immunities  of  free  citizens  in  the  several 
States;  and  the  people  of  each  State  shall 
have  free  ingress  and  egress  to  and  from  any 
other  State,  and  shall  enjoy  therein  all  the 
privileges  of  trade  and  commerce,  subject  to 
the  same  duties,  impositions  and  restrictions 
as  the  inhabitants  thereof  respectively,  pro- 
vided that  such  restriction  shall  not  extend  so 
far  as  to  prevent  the  removal  of  property 

252 


WHAT  PINCKNEY  DID 

imported  into  any  State,  to  any  other  State 
of  which  the  owner  is  an  inhabitant. " 

That  the  work  was  Pinckney 's  we  know, 
for  the  provisions  set  forth  in  articles  12  and 
13  of  his  draught  are  described  in  the  Obser- 
vations. 

But  though  the  work  of  Pinckney  was  built 
of  the  thoughts,  phrases  and  provisions  of 
other  men,  the  structure  was  his  own;  and  in 
its  details  as  in  its  general  design,  he  never 
failed  in  his  intent  that  the  new  republic  which 
he  was  trying  to  found  should  be  a  nation,  and 
that  its  government  should  have  all  the 
powers,  duties,  responsibilities  and  authority 
essential  and  incidental  to  nationality.  The 
thought  may  have  been  in  other  minds  but 
another  draughtsman  by  a  slight  change  of 
expression  might  have  warped  the  idea  and 
left  it  of  no  avail.  It  is  this  comprehensive 
generality  of  treatment  and  expression  which 
I  am  now  inclined  to  hold  was  Pinckney 's 
greatest  contribution  to  the  Constitution.  In- 
deed if  Marshall  had  laid  his  hand  on  Pinck- 
ney's  shoulder  and  said,  •"  Young  man,  so 
frame  your  constitution  that  I  shall  be  able 
to  interpret  it  according  to  the  necessities  of 

253 


THE  PINCKNEY  DEAUGHT 

the  Republic  and  in  harmony  with  the  general 
requirements  of  our  nationality,"  Pinckney 
would  not  have  needed  to  change  a  single  line. 
For  more  than  70  years,  Pinckney  has  been 
a  condemned  and  misrepresented  man,  and 
what  is  strange,  though  not  inexplicable,  his 
disgrace  was  primarily  caused  by  the  indis- 
pensable work  which  he  unselfishly  performed 
for  his  country  without  honor  and  without  re- 
ward. I  began  the  foregoing  investigation  of 
the  authenticity  and  verity  of  the  draught  in 
the  State  Department  in  consequence  of  the 
publication  of  Pinckney 's  letter  to  the  Secre- 
tary of  State  in  1818  in  which  he  sjbates 
frankly  that  the  paper  sent  is  not  a  literal 
duplicate  of  the  draught  presented  to  the  Con- 
vention and  that  the  draught  contained  pro- 
visions which  he  subsequently  condemned  and 
openly  opposed  during  the  debates.  I  knew 
of  the  worst  side  of  Pinckney 's  character — 
his  egoism,  his  garrulousness,  his  lack  of  cau- 
tious common  sense — and  in  my  early  study 
of  the  Constitution  the  Pinckney  draught  had 
seemed  too  much  to  be  the  work  of  one  man, 
and  the  charges  of  Madison  with  the  implica- 
tions of  Elliot  and  the  silence  of  Story  and 

254 


WHAT  PINCKNEY  DID 

the  censure  of  Bancroft  had  confirmed  my  sus-' 
picion  and  left  me  with  a  poor  opinion  of  the 
draught  in  the  State  Department  and  of  the 
man  who  placed  it  there.    The  most  which  I 
expected  from  this  investigation  was  that  I 
should  be  able  to  say  with  tolerable  certainty 
that  a  section  here  or  a  paragraph  there  in 
the  Constitution,  was  the  work  of  Pinckney. 
But  when  under  the  pressure  of  unquestion- 
able facts,  the  charges  of  Madison  fell   to 
pieces;   and  when  with  the  refutation  of  a 
charge,  just  so  much  of  the  draught  would  be 
positively  verified  and  affirmed ;  and  especially 
when  it  plainly  appeared,  not  only  that  in  sec- 
tions and  articles,  and  provisions  and  sen- 
tences, the  one  instrument  agreed  with  the 
other  but  that  in  form  and  style,  and  phrase- 
ology and  arrangement  from  the  words  of  the 
preamble,  "We  the  people  do  ordain,  declare, 
and  establish  the  following  Constitution  for 
the  government  of  ourselves  and  posterity" 
to  the  words  of  the  last  article,  "The  ratifica- 
tions of States  shall  be  sufficient  for  or- 
ganizing this  Constitution,"  the  draught  of 
the  Committee  of  Detail  follows  the  draught 
in  the  State  Department,  and  the  Constitution 

255 


THE  PINCKNEY  DRAUGHT 

follows  the  draught  of  the  Committee  of  De- 
tail, I  was  slowly  forced  to  the  conclusion  that 
the  young  South  Carolinian  on  whom  I  had 
placed*  no  high  estimate,  had  rendered  a  great 
service  at  a  critical  time,  and  that  but  for  his 
needed  work,  the  Constitution  would  be,  at 
least  in  form,  a  very  different  instrument 
from  the  one  which  we  revere.  My  slowly 
formed  conclusion  is  that  if  wise  and  judicious 
forethought,  and  much  patient  work  well  done, 
and  a  breadth  of  view  commensurate  with  the 
greatness  of  the  subject,  and  the  production  at 
a  critical  moment  of  a  paper  which  all  other 
men  in  or  out  of  the  Convention  had  neglected 
to  prepare,  entitle  a  man  to  the  lasting  rec- 
ognition of  his  countrymen,  there  is  no  f  ramer 
of  the  Constitution  more  entitled  to  be  com- 
memorated in  bronze  or  marble  than  Charles 
Pinckney  of  South  Carolina. 


256 


CHAPTER  XV 

CONCLUSIONS   ON   THE   WHOLE   CASE 


are  three  reasons  why  the  Pinck- 
I  ney  Draught  has  been  too  readily  dis- 
credited. The  first  is  our  respect  for  Mad- 
ison, our  belief  that  his  knowledge  far  exceed- 
ed our  own,  and  our  deference  to  his  repeat- 
edly expressed  opinion.  The  second  is  that 
the  draught  was  never  before  the  Convention 
and  consequently  never  received  the  recogni- 
tion of  discussion.  It  was  referred  at  the  be- 
ginning to  the  Committee  of  the  Whole  ;  but  it 
was  not  yet  wanted,  for  the  Committee  de- 
bated only  abstract  propositions  couched  in 
formal  resolutions.  It  was  referred  to  the 
Committee  of  Detail;  but  that  Committee  re- 
ported only  their  own  draught  and  the  Con- 
vention had  before  them  only  the  Committee's. 
The  draught  of  Pinckney  never  came  to  a 
vote,  was  never  discussed,  and  never  received 
the  slightest  consideration  in  the  Convention. 
The  third  reason  for  discrediting  the 
257 


THE  PINCKNEY  DKAUGHT 

draught  is  to  be  found  in  the  exaggerated 
value  which  has  been  set  upon  it.  It  has 
seemed  to  be  altogether  too  great  an  instru- 
ment to  have  been  the  work  of  one  man.  We 
have  felt  in  a  vague  way  that  to  concede  that 
one  man  could  have  contributed  so  much  to  the 
great  instrument  would  be  to  detract  from  the 
work  and  fame  of  the  great  men  whom  we  call 
the  framers  of  the  Constitution,  and  from  the 
Constitution  itself. 

But  the  fact  is  that  the  draught  of  Pinckney 
is  not  so  great  as  it  seems.  Coming  from  a 
man  so  well  equipped  for  the  work,  so  ex- 
perienced in  the  existing  affairs  of  our  mixed 
governments  and  with  such  a  clear  compre- 
hension of  the  conditions  of  the  case,  and  hav- 
ing such  a  mass  of  material  ready  to  his  hand, 
the  draught  is  not  a  marvelous  production. 
That  is  to  say  the  work  considered  as  the  work 
of  so  young  a  man  is  not  so  wonderful  as  at 
first  it  appears  to  be.  It  may  come  within  the 
range  of  the  improbable  but  not  of  the  impos- 
sible. 

Madison  has  himself  borne  witness  to  the 
fact  that  the  subject  of  a  substitute  for  the 
tottering  power  of  the  Confederated  States 

258 


CONCLUSIONS  ON  THE  WHOLE  CASE 

was  in  every  man's  mind;  and  that  every  in- 
telligent man  of  that  day  was  more  or  less 
fitted  to  draught  a  general  outline  of  a  new 
national  government: 

"The  resolutions' of  Mr.  Randolph,  the  basis 
on  which  the  deliberations  of  the  Convention 
proceeded,  were  the  result  of  a  consultation 
among  the  Virginia  deputies,  who  thought  it 
possible  that,  as  Virginia  had  taken  so  lead- 
ing a  part  in  reference  to  the  Federal  Conven- 
tion, some  initiative  propositions  might  be  ex- 
pected from  them.  They  were  understood  not 
to  commit  any  of  the  members  absolutely  or 
definitively  on  the  tenor  of  them.  The  reso- 
lutions will  be  seen  to  present  the  character- 
istics and  features  of  a  government  as  com- 
plete (in  some  respects,  perhaps  more  so)  as 
the  plan  of  Mr.  Pinckney,  though  without  be- 
ing thrown  into  a  formal  shape.  The  moment, 
indeed,  a  real  constitution  was  looked  for  as  a 
substitute  for  the  Confederacy,  the  distribu- 
tion of  the  Government  into  the  usual  depart- 
ments became  a  matter  of  course  with  all  who 
speculated  upon  the  prospective  change." 
Letter  to  W.  A.  Duer,  June  5th,  1835. 

The  difficulty  of  the  hour  was  not  in 
259 


THE  PINCKNEY  DRAUGHT 

draughting  a  constitution,  but  in  draughting 
one  which  would  not  arouse  the  jealous  antag- 
onism of  the  several  States.  That  difficulty 
did  not  trouble  Pinckney.  His  plan  contem- 
plated having  the  people  of  each  State  fairly, 
i.  e.,  proportionately  represented  in  his  House 
of  Delegates,  and  in  making  the  several  States 
as  States  unequivocally  submissive  to  the  new 
national  authority. 

Pinckney  had  been  for  two  years  immedi- 
ately before  the  sitting  of  the  Convention,  a 
delegate  in  the  Congress  of  the  Confedera- 
tion. He  had  been  the  representative  of 
South  Carolina  in  the  1 1  grand  committee ' '  ap- 
pointed to  consider  the  alteration  of  the 
Articles  of  Confederation.  He  had  been 
chairman  of  the  subcommittee  which  draught- 
ed the  committee's  report  of  August,  1786; 
and  (as  Professor  McLaughlin  has  pointed 
out)  "the  introducing  phrases,  as  appears  by 
reference  to  the  manuscript  papers  of  the  old 
Congress,  were  written  in  Pinckney 's  own 
hand."  In  witnessing  the  inherent  weakness 
and  increasing  degradation  of  the  Congress, 
he  had  learned  to  appreciate  the  incapacity  of 
the  confederate  system,  and  the  necessity  of  a 

260 


CONCLUSIONS  ON  THE  WHOLE  CASE 

National  government.  No  member  of  the 
Convention  better  appreciated  those  two 
things,  or  was  better  equipped  for  the  task 
which  he  undertook;  and  there  was  no  man 
in  the  country,  except  Madison,  who  had  been 
through  such  a  preparatory  course  and  had 
such  a  combination  of  resources  at  his  com- 
mand. He  was  young,  talented,  experienced, 
ambitious,  wealthy,  unemployed  and  a  cease- 
less worker.  The  index  of  Madison's  Journal 
witnesses  to  thef  immense  amount  of  work 
which  Pinckney  did  irrespective  of  the 
draught.  If  we  discard  the  draught — the 
original  draught,  the  disputed  draught,  and 
the  draught  described  in  the  Observations,  the 
fact  will  remain  that  Pinckney  was  an  im- 
portant contributor  to  the  work  of  framing  the 
Constitution. 

Pinckney 's  plan  of  government  was  precise- 
ly what  we  might  expect  it  to  be.  He  was  an 
able  but  not  a  sagacious  statesman;  that  is  he 
saw  clearly  what  he  wanted,  but  he  did  not  see 
what  other  men  wanted.  Neither  did  he  an- 
ticipate as  a  sagacious  statesman  would,  the 
ignorance,  the  adverse  interests  and  the  preju- 
dices of  those  who  ultimately  would  have  the 

261 


THE  PINCKNEY  DEAUGHT 

power  to  reject  or  ordain  the  work  of  the  Con- 
vention. Therefore  he  originated  none  of  the 
compromises  which  reconciled  antagonistic 
views  and  made  the  Constitution  possible. 
The  great  and  difficult  problems  which  con- 
fronted the  Convention  were  not  solved  by  the 
Draught.  Pinckney  in  it  provided  for  two 
legislative  houses  and  based  representation  on 
population,  neglecting  to  place  the  small 
States  on  an  equal  footing  with  the  large 
States  in  the  Senate.  He  provided  for  one 
Executive  head  as  did  every  government  in 
the  world,  but  he  devised  no  means  for  uniting 
harmoniously  the  large  and  small  States  in 
choosing  the  Executive.  The  Draught  was  an 
admirable  instrument  for  its  purpose — an  ad- 
mirable model  for  the  workmen  of  the  Con- 
vention to  correct,  alter  and  enlarge.  It  was 
crude  and  unfinished  but  it  was  in  well  chosen 
words  and  simple  sentences,  eschewing  par- 
ticulars and  presenting  in  a  masterly  way 
great  declaratory  principles  of  government. 
Pinckney  had  a  few  fanciful  provisions  in  his 
plan  and  yet  he  was  a  practical  and  not  a  fan- 
ciful constitution-maker,  not  above  taking  the 
best  material  he  could  find  wherever  he  could 

262 


CONCLUSIONS  ON  THE  WHOLE  CASE 

find  it,  resorting  to  himself  last ;  and  not  above 
throwing  aside  his  own  work  and  beginning 
again  and  again  until  he  had  patiently  wrought 
out  the  best  that  his  ability  could  do.  But 
when  in  estimating  the  Constitutional  value  of 
the  draught,  we  have  given  credit  for  the  ad- 
mirable construction  of  the  plan  of  govern- 
ment and  for  the  clear  declaratory  style  of  the 
instrument,  and  for  the  preamble,  and  when 
we  have  discarded  his  original  schemes,  not 
adopted  by  the  Convention,  such  as  the  plan 
for  the  Senate,  we  find  that  the  remainder  of 
the  draught  is  made  up  for  the  most  part  of  de- 
tails suggested  by  his  experience  in  the  Con- 
gress of  the  Confederated  States,  details 
which  were  culled  by  him  with  extraordinary 
care  from  the  constitutions  of  New  York  and 
Massachusetts  and  the  Articles  of  Confedera- 
tion. 

In  a  word,  the  provisions  which  were  reject- 
ed, such  as  a  Senate  chosen  by  the  House  of 
Kepresentatives ;  such  as  a  Senate  having  "the 
sole  and  exclusive  power"  to  declare  war,  to 
make  treaties,  to  appoint  foreign  ministers  and 
judges  of  the  Supreme  Court;  such  as  a 
national  legislature  having  power  to  "revise 

263 


THE  PINCKNEY  DEAUGHT 

the  laws  of  the  several  States "  and  "to  nega- 
tive and  annul' '  those  which  infringed  the 
powers  delegated  to  Congress — do  not  cause 
either  wonder  or  admiration.  It  is  the  val- 
uable practical  provisions  of  the  draught 
which  provoke  doubts.  Yet  these  are  for  the 
most  part  the  work  of  selection  by  an  author 
thoroughly  versed  in  what  may  be  called  the 
Constitutional  literature  and  studies  of  the 
day,  and  who  by  experience  knew  precisely 
what  was  needed  to  transmute  the  Confeder- 
ated States  into  an  efficient  National  govern- 
ment. 

In  our  minds  we  picture  the  framers  of  the 
Constitution  as  remarkable  men,  sage  in 
council,  experienced  in  affairs  of  state.  But 
there  were  two  young  men,  the  one  36,  the 
other  30,  who  furnished  the  constructive  minds 
of  the  Convention.  Madison  was  foremost  in 
framing  the  Virginia  resolutions,  which 
brought  before  the  Convention  questions  for 
abstract  discussion  and  bases  on  which  to  rest 
principles  of  government.  Pinckney  formu- 
lated a  constitution  which  became  a  basis  for 
the  most  of  the  concrete  work.  Both  had  had 
the  severe  practical  training  of  members  of 
264 


CONCLUSIONS  ON  THE  WHOLE  CASE 

the  Congress  of  the  Confederated  States  dur- 
ing the  sorest  period  of  its  humiliating  help- 
lessness, the  darkening  days  which  preceded 
its  dissolution.  Both  understood  thoroughly 
the  existing  system  which  made  the  Federal 
government  dependent  upon  its  States  and 
therefore  inferior  to  them;  and  they  knew  by 
what  had  been  to  them  bitter  experience  that 
the  solvency  of  the  Federal  government  was 
dependent  upon  the  voluntary  contributions 
of  each  and  all  of  the  States,  and  that  a  single 
one  of  the  great  States  by  refusing  to  pay  its 
quota  could  bring  the  nation  to  bankruptcy. 
They  knew  too  that  while  the  general  govern- 
ment could  make  treaties,  the  States  could  vio- 
late them — that  they  had  violated  them,  and 
even  then  had  brought  the  country  to  the 
verge  of  a  foreign  war.  Their  minds  recoiled, 
as  the  minds  of  young  men  naturally  would, 
to  the  opposite  extreme,  and  each  believed  in 
the  subversion  of  the  States.  How  fully  they 
agreed  a  single  illustration  will  disclose. 

On  Friday,  June  8th, 

"Mr.  Pinckney  moved  'that  the  National 
Legislature  shd.  have  authority  to  negative 
all  laws  which  they  shd.  judge  to  be  improper.' 

265 


THE  PINCKNEY  DRAUGHT 

He  urged  that  such  a  universality  of  the 
power  was  indispensably  necessary  to  render 
it  effectual;  that  the  States  must  be  kept  in 
due  subordination  to  the  nation;  that  if  the 
States  were  left  to  act  of  themselves  in  any 
case,  it  wd.  be  impossible  to  defend  the  nation- 
al prerogatives,  however  extensive  they  might 
be  on  paper;  that  the  acts  of  Congress  had 
been  defeated  by  this  means ;  nor  had  foreign 
treaties  escaped  repeated  violations ;  that  this 
universal  negative  was  in  fact  the  corner  stone 
of  an  efficient  national  Govt." 

"Mr.  Madison  seconded  the  motion.  He 
could  not  but  regard  an  indefinite  power  to 
negative  legislative  acts  of  the  States  as  ab- 
solutely necessary  to  a  perfect  System.  Ex- 
perience had  evinced  a  constant  tendency  in 
the  States  to  encroach  on  the  federal  author- 
ity; to  violate  national  Treaties;  to  infringe 
the  rights  and  interests  of  each  other;  to 
oppress  the  weaker  party  within  their 
respective  jurisdictions.  A  negative  was  the 
mildest  expedient  that  could  be  devised  for 
preventing  these  mischiefs." 

But  it  was  for  these  same  reasons  that 
neither  Madison  nor  Pinckney  attempted  to 

266 


CONCLUSIONS  ON  THE  WHOLE  CASE 

frame  a  compromise.  Each  wanted  a  nation- 
al government  with  unequivocal  powers. 
Each  ignored  the  jealousy  of  the  small  States, 
the  apprehensions  of  the  slave  States,  the  in- 
creasing preponderence  of  the  free  States. 
Both  intended  that  these  elements  of  distrust 
should  be  absorbed  by  the  overwhelming 
power  of  the  new  national  government.  For 
more  than  100  years  the  American  people  have 
kept  the  cardinal  idea  of  these  youthful  states- 
men buried  from  sight  or  contemplation  as 
something  impractical  or  dangerous  but  they 
are  now  beginning  to  ask  themselves  whether 
an  overwhelming  national  government  is  not 
the  better  agency  for  the  control  and  manage- 
ment of  their  modern,  complex,  national  life. 

Considering  that  Madison  and  Pinckney 
worked  in  such  different  fields,  the  abstract 
and  the  concrete,  it  is  remarkable  that  the 
work  of  the  one  repeatedly  and  constantly 
agrees  with  the  work  of  the  other.  Consid- 
ering that  they  had  worked  side  by  side  for 
years  conferring  daily  on  the  same  absorbing 
subject,  encountering  the  same  difficulties, 
thwarted  by  the  same  obstacles,  defeated  by 
the  same  incapacities,  their  minds  intent  on 

267 


THE  PINCKNEY  DBAUGHT 

the  same  ends,  it  is  not  remarkable  that  an 
identity  of  purpose  was  followed,  though  in 
different  forms,  by  an  identity  of  results  and 
that  the  work  of  Pinckney  was  little  more  than 
an  embodiment  of  the  propositions  of  Mad- 
ison. Together  they  furnished  just  what  the 
necessities  of  the  hour  required,  ideas  of  gov- 
ernment for  consideration  and  discussion; 
formulated  constitutional  provisions  for 
amendment  and  adoption.  Greatly  to  be  re- 
gretted it  is  that  the  two  men  who  did  such 
valuable  interserviceable  work  for  the  cause  to 
which  their  lives  were  then  devoted,  and  whose 
names  should  be  most  closely  associated  in  the 
history  of  the  Constitution,  now  appear  so 
irretrievably  antagonistic. 

There  are  some  provisions  in  the  draught 
which  are  not  sustained  by  the  confirmatory 
fact  of  being  incorporated  in  the  draught  of 
the  Committee  of  Detail,  and  notably  the  fol- 
lowing : 

"The  legislature  of  the  United  States  shall 
have  the  power"  "to  pass  laws  for  arming, 
organizing  and  disciplining  the  militia  of  the 
United  States, "  Art.  6.  This  power  to  or- 
ganize and  discipline  the  militia  was  a  radical 

268 


CONCLUSIONS  ON  THE  WHOLE  CASE 

transfer  of  authority  from  the  States  to  the 
new  national  government,  a  power  which  the 
committee  were  not  instructed  to  transfer  and 
which  accordingly  they  did  not  incorporate  in 
their  draught.  But  it  is  specifically  set  forth 
in  the  Observations  as  one  of  the  provisions  of 
the  draught ;  and  on  the  18th  of  August  Pinck- 
ney  advocated  in  the  Convention  substantially 
the  same  thing. 

The  draught  also  provides  that  the  legisla- 
ture of  the  United  States  shall  have  power, 
"To  provide  for  the  establishment  of  a  seat 
of  government  for  the  United  States,  not  ex- 
ceeding   miles  square,  in  which  they  shall 

have  exclusive  jurisdiction. "  Art.  6.  This 
also  was  a  radical  innovation  which  the  Com- 
mittee could  not  adopt  without  authority.  But 
it  was  also  specifically  set  forth  in  the  Obser- 
vations ;  and  on  the  18th  of  August  Pinckney 
moved  in  the  Convention; 

"To  fix  and  permanently  establish  the  seat 
of  government  of  the  United  States  in  which 
they  shall  possess  the  exclusive  right  of  soil 
and  jurisdiction. " 

The  draught  also  provides,  "nor  shall  the 
privilege  of  the  writ  of  habeas  corpus  ever  be 

269 


THE  PINCKNEY  DEAUGHT 

suspended,  except  in  cases  of  rebellion  or  in- 
vasion." Art.  6. 

The  Convention  shrank  from  the  insertion 
of  a  bill  of  rights  in  the  Constitution  because, 
as  was  subsequently  explained,  it  was  feared 
that  it  might  bring  up  the  subject  of  slavery, 
one  member  insisting  that  it  should  contain  a 
declaration  against  slavery,  and  another  that 
it  should  specifically  declare  that  it  did  not 
extend  to  slaves.  Accordingly  the  committee 
did  not  incorporate  this  declaration  of  right 
in  their  draught.  But  it  is  set  forth  in  the 
Observations;  and  on  the  20th  of  August 
Pinckney  proposed  in  the  Convention  a 
stronger  and  more  explicit  provision. 

These  provisions,  therefore,  are  sustained 
by  the  public,  contemporaneous  avowal  of 
Pinckney  that  they  were  in  the  draught  which 
he  had  prepared  for  the  use  of  the  Conven- 
tion; and  by  the  recorded  facts  that  when  he 
found  that  the  committee  had  not  considered 
them  as  within  their  jurisdiction  and  had  not 
incorporated  them  in  their  draught  he  brought 
them  before  the  Convention  and  sought  to 
have  them  inserted  in  the  Constitution.  As  it 
is  certain  that  the  ideas  were  his,  and  that  he 
270 


CONCLUSIONS  ON  THE  WHOLE  CASE 

formulated  them  into  provisions  substan- 
tially identical  with  those  in  the  State  Depart- 
ment draught,  at  the  time  when  the  Conven- 
tion was  considering  the  respective  subjects, 
it  requires  very  little  additional  assurance  to 
make  us  accept  them  as  a  part  of  the  draught 
presented  to  the  Convention. 

Conversely,  there  are  provisions  which  may 
have  been  in  the  draught  presented  to  the  Con- 
vention, but  which  are  not  in  the  draught  filed 
in  the  State  Department.  The  most  notable, 
of  these  is  the  one  relating  to  patents  and 
copyright.  Pinckney  says  in  the  Observa- 
tions "  There  is  also  an  authority  to  the  na- 
tional legislature"  "to  secure  to  authors  the 
exclusive  right  to  their  performances  and  dis- 
coveries;" and  on  the  18th  of  August  he 
moved  in  the  Convention  to  insert  among 
other  powers  '  '  To  grant  patents  for  useful  in- 
ventions." 

If  the  provision  was  in  the  original  draught, 
the  Committee  of  Detail  were  not  authorized 
to  adopt  it  and  did  not;  but  the  Convention 
did  and  it  became  a  part  of  the  Constitution. 
Pinckney  was  constantly  nursing  his  draught, 
revising,  amending,  rearranging,  and  it  is  not 

271 


THE  PINCKNEY  DRAUGHT 

improbable  that  he  inserted  this  provision  in 
one  copy  and  neglected  to  insert  it  in  the  oth- 
ers. But  he  certainly  seems  to  have  been  the 
author  of  it.  From  one  point  of  view  it  may 
seem  a  needless  Constitutional  provision;  for 
a  national  legislature  could  so  legislate  without 
it.  But  under  the  British  Constitution  mo- 
nopolies were  a  prerogative  of  the  Crown,  and 
a  patent  was  deemed  a  monopoly.  Pinckney 
therefore  did  wisely  in  expressly  assigning 
patent-rights  and  copyrights  to  the  legislative 
branch  of  the  Government,  giving  to  the  mind- 
work  of  the  inventor  or  author  the  character 
of  property  and  the  safeguard  of  the  law. 

Another  provision  is  the  compromise  relat- 
ing to  slave  representation.  In  the  State  De- 
partment draught  it  is  provided  that  the  num- 
ber of  the  delegates  shall  be  regulated  "by  the 
number  of  inhabitants"  (Art.  3)  and  that 
"the  proportion  of  direct  taxation  shall  be 
regulated  by  the  whole  number  of  inhabitants 
of  every  description."  In  the  Observations 
he  says  that  his  plan  contains  a  provision  "for 
empowering  Congress  to  levy  taxes  upon  the 
States,  agreeable  to  the  rule  now  in  use,  an 
enumeration  of  the  white  inhabitants,  and 

272 


CONCLUSIONS  ON  THE  WHOLE  CASE 

three-fifths  of  other  descriptions."  In  the 
Convention  on  the  12th  of  July,  "Mr.  Pinck- 
ney  moved  to  amend  Mr.  Bandolph's  motion 
so  as  to  make  '  blacks  equal  to  the  whites  in  the 
ratio  of  representation.'  This  he  urged  was 
nothing  more  than  justice.  The  blacks  are 
the  labourers,  the  peasants  of  the  Southern 
States :  they  are  as  productive  of  pecuniary 
resources  as  those  of  the  Northern  States. 
They  add  equally  to  the  wealth,  and,  con- 
sidering money  as  the  sinews  of  war,  to  the 
strength  of  the  nation.  It  will  also  be  politic 
with  regard  to  the  Northern  States,  as  tax- 
ation is  to  keep  pace  with  Bepresentation. " 

This  is  conclusive  as  to  Pinckney's  views. 
It  confirms  the  draught  in  the  State  Depart- 
ment and  shows  too  that  the  copy  of  the 
draught  on  which  the  Observations  were 
founded  differed  in  this  detail  from  the 
draught  presented  to  the  Convention. 

On  a  review  of  the  entire  case  I  have 
reached  the  following  conclusions: 

1.  The  draught  in  the  State  Department 
agrees  so  closely  with  the  draught  of  the  Com- 
mittee of  Detail,  in  form,  in  phraseology,  in 
structure,  in  arrangement,  in  extent,  in  its  be- 

273 


THE  PINCKNEY  DRAUGHT 

ginning  and  its  ending  that  unquestionably  the 
one  draught  must  have  followed  the  other. 
There  can  be  no  middle  ground  here. 

2.  With  the  uncovering  of  the  Committee's 
draught  and  the  bringing  of  the  Observations 
into  the  case  and  the  confirmatory  matter  in 
the   Randolph   and  Wilson   draughts,   it  be- 
comes evident  that  the  suspected  fraud  was  an 
impossibility.    That  is  to  say,  when  Pmckney 
described   in   the    Observations   the    draught 
which  he  was  subsequently  to  present  to  the 
Convention  he  thereby  described  the  draught 
which  he  was  ultimately  to  place  in  the  De- 
partment of  State.    In  a  word,  if  a  fraud  was 
perpetrated  in  1818,  it  must  have  been  begun 
in  1787,  before  the  Convention  met,  which  is 
a  reductio  ad  absurdum. 

3.  The  Observations  were  printed  and  pub- 
lished during  the  lifetime  of  every  member  of 
the  Convention,  including  the  five  members  of 
the  Committee    of  Detail,  and  Pinckney  im- 
mediately   republished    them    in    the    South 
Carolina   State   Gazette.    In  1819  when  the 
copy  of  the  draught  was  published  and  circu- 
lated as  a  public  document  there  were  16  mem- 
bers of  the   Convention  still  living,   among 

274 


CONCLUSIONS  ON  THE  WHOLE  CASE 

whom  was  Madison,  the  chronicler  of  the  Con- 
vention. 

It  must  therefore  be  held  that  Pinckney  did 
not  conceal  anything  or  shrink  from  in- 
vestigation; and  that  all  which  he  did  was 
done  in  due  time,  in  the  light  of  day  and  in  the 
most  open  manner.  Indeed  it  may  be  asked 
whether  there  ever  was  an  historical  document 
which  was  so  doubly  published  and  declared 
both  prior  to  and  at  the  time  when  it 
was  produced  as  the  Pinckney  draught;  or 
which  could  have  been  so  easily  refuted,  if  it 
was  really  refutable!  A  court  of  justice  in 
such  a  case  would  say,  "The  plea  of  fraud  is 
sustained  by  no  evidence  whatever.  To  allow 
a  document  which  was  placed  in  the  files 
of  the  Government  at  the  instance  of  a  high 
officer  of  State  to  be  attacked  and  discredited 
because  of  the  doubts  and  suspicions  of  indi- 
viduals, no  matter  how  eminent  and  intelligent, 
would  be  a  monstrous  abuse  of  authority  which 
can  not  be  upheld  in  either  law  or  morals. " 

4.  A  question  may  be  raised  as  to  whether 
the  Journal  of  Madison  can  properly  be  ad- 
mitted as  evidence  against  the  claim  of  Pinck- 
ney ;  and  it  must  be  conceded  that  Madison  oc- 

275 


THE  PINCKNEY  DRAUGHT 

cupied  the  position  of  a  controversialist;  that 
during  the  whole  of  the  period  of  controversy 
his  chronicle  of  the  Convention  was  in  his  ex- 
clusive possession;  and  that  it  was  within  his 
power  at  any  moment  to  obliterate  parts  or 
passages  which,  coming  to  the  knowledge  of 
the  world,  would  weaken  his  own  position  and 
vindicate  Pinckney  and  sustain  the  draught. 
But  such  a  suggestion  against  the  integrity  of 
such  a  man  is  not  to  be  lightly  entertained.  It 
is  no  more  to  be  believed  without  evidence 
(and  evidence  of  the  most  clear  and  unequivo- 
cal character)  that  Madison,  for  his  own  pur- 
poses, obliterated  historical  evidence,  than 
that  Pinckney  fabricated  it.  Each  was  a 
member  of  the  Congress  of  the  Confederation ; 
each  was  a  delegate  to  the  great  Convention; 
each  was  eminent  for  his  zeal  in  the  pro- 
longed and  often  hopeless  work  of  framing  the 
Constitution;  each  has  left  behind  him  a  long 
record  of  distinguished  public  life.  The  one 
laboriously  prepared  the  only  draught  of  the 
Constitution  that  was  made  for  the  use  of  the 
Convention;  and  the  other  laboriously  pre- 
pared the  only  chronicle  of  the  framers'  work 
which  the  world  possesses.  It  is  not  for  the 

276 


CONCLUSIONS  ON  THE  WHOLE  CASE 

bitterness  of  controversy,  heedlessly,  to  assail 
such  men. 

5.  The  Journal  of  Madison  must  be  received 
as  authentic  history.  At  the  same  time  it 
must  be  borne  in  mind  that  it  was  not  written 
with  the  fulness  and  precision  of  the  modern 
stenographer.  Madison  could  not  transcribe 
the  words  which  a  speaker  uttered  and  leave 
us  to  ascertain  the  speaker's  meaning  from  his 
words.  All  that  such  a  reporter  could  do  was 
to  record  what  he  believed  to  be  the  speaker's 
meaning.  It  follows  that  condensed  passages, 
isolated  sentences,  casual  turns  of  expression 
cannot  be  used  as  admissions  against  Pinck- 
ney,  and  must  be  considered  with  disinterested 
caution,  if  they  be  considered  at  all. 

Time  which  destroys,  also  discloses;  and 
time  may  bring  to  light  some  record  which  will 
change  the  conclusions  of  to-day.  But  as  the 
case  now  stands  it  must  be  said  that  the  Pinck- 
ney  Draught  in  the  Department  of  State  is 
(with  the  exceptions  before  noted),  all  that 
Pinckney  represented  it  to  be. 


277 


CHAPTER  XVI 

OF  PINCKNEY  PERSONALLY 

PINCKNEY  was  in  the  fourth  generation 
of  a  family  which  had  been  distinguished 
for  more  than  one  hundred  years  for  its  public 
services.  He  had  been  elected  to  the  provin- 
cial legislature  of  South  Carolina  before  he 
had  come  of  age;  and  he  had  made  himself 
before  the  sitting  of  the  Convention  a  promi- 
nent member  of  the  Congress  of  the  Confeder- 
ated States.  He  had  a  clearer  apprehension 
of  the  actual  needs  of  American  nationality 
than  any  other  member  of  the  Convention. 
This  may  be  seen  in  his  Observations  and  in 
his  speech  of  the  25th  of  June.  There  is  a 
passage  in  that  speech  in  which  anticipating 
the  Farewell  Address  of  Washington  and  the 
peace  policy  of  Jefferson  he  looks  forward 
through  the  ensuing  century  of  the  Constitu- 
tion and  depicts  the  practical  blessings  which 
it  was  to  bring  to  the  American  people  with  a 
clearness  and  accuracy  that  is  extraordinary: 

278 


OF  PINCKNEY  PERSONALLY 

"  Our  true  situation  appears  to  me  to  be 
this  —  a  new,  extensive  country,  containing 
within  itself  the  materials  for  forming  a  gov- 
ernment capable  of  extendng  to  its  citizens  all 
the  blessings  of  civil  and  religious  liberty — ca- 
pable of  making  them  happy  at  home.  This  is 
the  great  end  of  republican  establishments. 
We  mistake  the  object  of  our  government,  if 
we  hope  or  wish  that  it  is  to  make  us  respect- 
able abroad.  Conquests  or  superiority  among 
other  powers  is  not,  or  ought  not  ever  to  be, 
the  object  of  republican  systems.  If  they  are 
sufficiently  active  and  energetic  to  rescue  us 
from  contempt,  and  preserve  our  domestic 
happiness  and  security,  it  is  all  we  can  expect 
from  them — it  is  more- than  almost  any  other 
government  insures  to  its  citizens. " 

Pinckney's  experience  in  the  Congress  of 
the  Confederation  made  him  despise  the  exist- 
ing Federal  Government  and  undervalue  the 
local  authority  of  the  States.  He  came  into 
the  Convention  its  most  extreme  Federalist — 
more  so  even  than  Hamilton.  As  he  said  in 
the  Observations: 

"In  the  federal  councils,  each  State  ought 
to  have  a  weight  in  proportion  to  its  impor- 

279 


THE  PINCKNEY  DRAUGHT 

tance ;  and  no  State  is  justly  entitled  to  great- 
er." 

"The  Senatorial  districts  into  which  the 
Union  is  to  be  divided  [in  his  plan]  will  be  so 
apportioned  as  to  give  to  each  its  due  weight, 
and  the  Senate  calculated  in  this  as  it  ought  to 
be  in  every  government,  to  represent  the 
wealth  of  the  nation. " 

"The  next  provision  [in  his  draught]  is  in- 
tended to  give  the  United  States  in  Congress, 
not  only  a  revision  of  the  legislative  acts  of 
each  State,  but  a  negative  upon  all  such  as 
shall  appear  to  them  improper." 

"The  idea  that  has  been  so  long  and  falsely 
entertained  of  each  being  a  sovereign  State, 
must  be  given  up;  for  it  is  absurd  to  suppose 
there  can  be  more  than  one  sovereignty  within 
a  government." 

"Upon  a  clear  and  comprehensive  view  of 
the  relative  situation  of  the  Union,  and  its 
members,  we  shall  be  convinced  of  the  policy  of 
concentring  in  the  federal  head  a  complete 
supremacy  in  the  affairs  of  government." 

In  the  Convention  Pinckney  moved  that  the 
members  of  the  lower  House  should  be 
chosen  by  the  legislatures  "of  the  several 
280 


OF  PINCKNEY  PEKSONALLY 

States";  but  this  was  the  one  thing  which  he 
conceded  to  "the  several  States. "  The  Sen- 
ate was  to  be  chosen  by  the  House  of  Del- 
egates; and  what  is  more  significant,  the  Sen- 
ate was  not  to  represent  States,  with  the  sav- 
ing clause,  "Each  State  shall  be  entitled  to 
have  at  least  one  member  in  the  Senate. "  Fi- 
nally he  would  strike  an  absolutely  fatal  blow 
at  State  sovereignty  by  providing,  "the  Leg- 
islature of  the  United  States  shall  have  the 
power  to  revise  the  Laws  of  the  several  States 
that  may  be  supposed  to  infringe  the  powers 
exclusively  delegated  by  this  Constitution  to 
Congress,  and  to  negative  and  annul  such  as 
do." 

Knowing  as  we  do  of  Pinckney's  youth  (he 
was  not  yet  30)  and  of  Madison's  poor  opinion 
of  him,  it  is  desirable  that  we  should  know,  if 
possible,  what  his  contemporaries  in  the  Con- 
vention thought  of  him.  William  Pierce  the 
delegate  from  Georgia  who  has  left  to  us  the 
anecdote  of  Washington  before  quoted  (p.  230) 
noted  at  the  time  his  impressions  of  the  lead- 
ing members  of  the  Convention.  From  these 
I  select  his  sketches  of  four  of  the  young  mem- 
bers of  the  Convention  who  had  even  then  at- 

281 


THE  PINCKNEY  DBAUGHT 

tained  distinction,  Edmund  Bandolph,  Bufus 
King,  Alexander  Hamilton  and  Charles  Pinck- 
ney: 

"Mr.  Bandolph  is  Governor  of  Virginia — a 
young  gentleman  in  whom  unite  all  the  ac- 
complishments of  the  Scholar  and  the  States- 
man. He  came  forward  with  the  postulata 
or  first  principles  on  which  the  Convention 
acted ;  and  he  supported  them  with  a  force  of 
eloquence  and  reasoning  that  did  him  great 
honor.  He  has  a  most  harmonious  voice,  a 
fine  person  and  striking  manners. ' ' 

* i  Mr.  King  is  a  Man  much  distinguished  for 
his  eloquence  and  great  parliamentary  talents. 
He  was  educated  in  Massachusetts,  and  is  said 
to  have  good  classical  as  well  as  legal  knowl- 
edge. He  has  served  for  three  years  in  the 
Congress  of  the  United  States  with  great  and 
deserved  applause,  and  is  at  this  time  high  in 
the  confidence  and  approbation  of  his  Country- 
men. This  Gentleman  is  about  thirty-three 
years  of  age,  about  five  feet  ten  Inches  high, 
well  formed,  an  handsome  face,  with  a  strong 
expressive  Eye,  and  a  sweet  high  toned  voice. 
In  his  public  speaking  there  is  something  pe- 
culiarly strong  and  rich  in  his  expression, 
282 


OF  PINCKNEY  PERSONALLY 

clear,  and  convincing  in  his  arguments,  rapid 
and  irresistible  at  times  in  his  eloquence  but 
he  is  not  always  equal.  His  action  is  natural, 
swimming,  and  graceful,  but  there  is  a  rude- 
ness of  manner  sometimes  accompanying  it. 
But  take  him  tout  en  semble,  he  may  with  pro- 
priety be  ranked  among  the  Luminaries  of  the 
present  age." 

"Col.  Hamilton  is  deservedly  celebrated  for 
his  talents.  He  is  a  practitioner  of  the  Law, 
and  reputed  to  be  a  finished  Scholar.  To  a 
clear  and  strong  judgment  he  unites  the  orna- 
ments of  fancy,  and  whilst  he  is  able,  convinc- 
ing, and  engaging  in  his  eloquence  the  Heart 
and  Head  sympathize  in  approving  him.  Yet 
there  is  something  too  feeble  in  his  voice  to 
be  equal  to  the  strains  of  oratory; — it  is  my 
opinion  that  he  is  a  convincing  Speaker,  that 
(than)  a  blazing  Orator.  Col.  Hamilton  re- 
quires time  to  think, — he  enquires  into  every 
part  of  his  subject  with  the  searchings  of 
phylosophy,  and  when  he  comes  forward  he 
comes  highly  charged  with  interesting  matter, 
there  is  no  skimming  over  the  surface  of  a  sub- 
ject with  him,  he  must  sink  to  the  bottom  to 
see  what  foundation  it  rests  on. — His  lan- 
283 


THE  PINCKNEY  DBAUGHT 

guage  is  not  always  equal,  sometimes  didactic 
like  Bolingbroke's,  at  others  light  and  tripping 
like  Sterne's.  His  eloquence  is  not  so  defusive 
as  to  trifle  with  the  senses,  but  he  rambles 
just  enough  to  strike  and  keep  up  the  atten- 
tion. He  is  about  33  years  old,  of  small  stat- 
ure, and  lean.  His  manners  are  tinctured 
with  stiffness,  and  sometimes  with  a  degree  of 
vanity  that  is  highly  disagreeable. " 

"Mr.  Charles  Pinckney  is  a  young  Gentle- 
man of  the  most  promising  talents.  He  is, 
altho'  only  24  [29]  y's  of  age,  in  possession  of 
a  very  great  variety  of  knowledge.  Govern- 
ment, Law,  History  and  Phylosophy  are  his 
favorite  studies,  but  he  is  intimately  ac- 
quainted with  every  species  of  polite  learning, 
and  has  a  spirit  of  application  and  industry  be- 
yond most  Men.  He  speaks  with  neatness 
and  perspicuity,  and  treats  every  subject  as 
fully,  without  running  into  prolixity,  as  it  re- 
quires. He  has  been  a  member  of  Congress, 
and  served  in  that  Body  with  ability  and 
eclat."  (William  Pierce  of  Georgia;  3  Amer. 
Hist.  Review,  313.) 

In  this  materialistic  world  of  cause  and  ef- 
fect there  sometimes  seem  to  be  recurring  fa- 
284 


OF  PINCKNEY  PERSONALLY 

talities  which  attend  individuals  that  needless- 
ness  has  not  caused  and  that  foresight  could 
not  have  prevented — a  fate  of  fire  or  flood  or 
shipwreck,  of  good  fortune  or  of  bad  fortune 
of  successes  or  of  casualties  of  escapes  or  of 
disasters — a  fate  that  fastens  upon  an  indi- 
vidual and  cannot  be  shaken  off.  The  fate  as- 
signed to  Pinckney  seems  to  have  been  obliv- 
ion. Substantially  everything  which  he  prized 
is  gone.  His  house  was  one  of  the  finest  in 
Charleston,  if  not  the  finest,  and  it  was  de- 
stroyed. He  believed  his  library  to  be  the 
most  valuable  library  in  the  South  and  his 
great  gallery  to  hold  the  rarest  pictures  in  this 
country  yet  but  a  few  volumes  remain  of  the 
one  and  but  two  portraits  of  the  other.  His 
garden  was  the  most  beautiful  in  the  State, 
it  was  his  pride,  his  delight,  and  obliteration 
has  indeed  been  its  portion;  even  the  soil 
which  bore  him  flowers  and  shrubbery  and 
trees  and  was  laden  with  all  the  loveliness  of 
semi-tropical  vegetation  is  gone;  for  it  was 
carried  away  during  the  Civil  War  to  make 
military  defenses.  At  the  beginning  of  this 
investigation  I  began  to  search  for  the  papers 
of  which  Pinckney  speaks  in  his  letter  to  the 

285 


THE  PINCKNEY  DBAUGHT 

Secretary  of  State — papers  which  might  throw 
new  light  on  the  framing  of  the  Constitution 
or  solve  the  problem  of  the  contents  of  the 
draught.  In  this  search  General  McCrady,  of 
Charleston  kindly  and  sympathetically  co-op- 
erated, but  I  soon  received  his  assurance  that 
the  quest  was  not  a  new  one  for  him,  and  that 
neither  in  the  Historical  Society  of  South  Car- 
olina of  which  he  was  President  nor  in  the  pos- 
session of  his  friends  could  a  document  or  pa- 
per or  even  a  letter  be  found.  At  that  time  I  de- 
sired to  obtain  a  specimen  of  Pinckney's  early 
handwriting  and  accordingly  carried  my  pur- 
suit into  the  circle  of  his  direct  descendants; 
but  the  sad  reply  came  from  his  great-grand- 
son, Mr.  Charles  Pinckney  of  Claremont, 
South  Carolina  that  "  all  of  his  papers  and 
private  manuscripts  were  destroyed  in  the 
great  fire  in  Charleston  in  1861,"  and  that  his 
descendants  possess  "no  remains  of  his  hand- 
writing except  the  autographs  in  his  books." 
Letters  and  papers  of  eminent  men  are  con- 
stantly coming  to  the  light  from  unexpected 
hiding  places  and  there  is  the  official  corre- 
spondence in  the  State  Department  and  papers 
may  exist  in  the  public  offices  of  South  Caro- 

286 


OF  PINCKNEY  PERSONALLY 

lina,  but  apart  from  these,  my  investigation 
stops  at  a  point  where  it  must  be  said  that  not 
so  much  as  a  single  line  of  the  writing  of 
Charles  Pinckney  now  exists. 

In  1787  while  Pinckney  was  in  the  full  pos- 
session of  his  youthful  power  and  fortune  and 
all  those  things  which  give  a  man  a  prestige 
above  his  fellows,  fate  seems  to  have  leaned 
forward  and  touched  the  instrument  which 
was  the  supreme  work  of  his  life,  the  Draught 
of  the  Constitution  of  the  United  States — and 
to  have  set  a  seal  upon  the  lips  of  every  man 
who  could  testify  as  to  its  contents.  If  ever 
there  was  a  paper  of  which  it  might  be  pre- 
dicted that  it  would  survive  its  time  and  be  se- 
curely kept,  that  was  the  paper.  The  Conven- 
tion was  composed  of  the  most  orderly,  care- 
taking  and  reputable  of  men,  and  the  author 
of  the  draught  was  one  of  them.  The  com- 
mand of  the  Convention  was  that  its  papers 
should  be  preserved.  The  papers  were  placed 
in  the  custody  of  the  most  scrupulous  of  men 
and  by  him  transferred  to  the  official  guard- 
ianship of  a  department  of  the  Government, 
and  there  we  might  expect  to  find  the  draught 
of  Pinckney;  but  fate  had  touched  the  great 

287 


THE  PINCKNEY  DRAUGHT 

State  paper,  and  we  find  only  that  it  had  van- 
ished mysteriously  from  the  earth. 


The  following  biographical  sketch  is  by  Mr. 
Wm.  S.  Elliott,  of  South  Carolina,  a  grand 
nephew  of  Pinckney: 

"In  the  diploma,  by  which  the  degree  of 
Doctor  of  Laws  was  conferred  upon  him  by 
the  University  of  Princeton,  New  Jersey,  it  is 
expressly  declared,  that  it  'is  conferred  on  ac- 
count of  high  acquirements,  learning  and 
ability,  and  particularly  for  his  distinguished 
services  in  Congress  and  the  Federal  Conven- 
tion.' From  1787  to  1789,  he  was  traveling 
on  the  Continent  and  on  his  return,  was 
elected  Governor  of  the  State.  While  Govern- 
or, he  was  a  delegate  to,  and  made  president 
of  the  State  Convention  for  forming  the  Con- 
stitution. In  1791  he  was  chosen  a  second 
time,  and  in  1796  a  third  time,  Governor  of  the 
State ;  in  1798  a  Senator  in  Congress,  where  he 
remained  until  1801,  when  Mr.  Jefferson  ap- 
pointed him  Minister  Plenipotentiary  to  Spain, 
with  power  to  treat  for  the  purchase  of  Louis- 
iana and  Florida.  On  his  return  in  1806,  he 
was  a  fourth  time  honored  with  the  position  of 

288 


OF  PINCKNEY  PERSONALLY 

Governor  of  the  State,  and  he  is  the  only  citi- 
zen who  has  been  so  frequently  elevated  to  the 
executive  chair.  From  this  period  he  retired 
from  public  life,  until  in  1818,  when  he  was 
elected  under  great  party  excitement  to  the 
United  States  House  of  Representatives  by 
Charleston  District,  and  he  here  closed  his 
political  life  with  his  speech  in  opposition  to 
the  Missouri  Compromise. 

"  Family  tradition  and  genealogical  history 
are  the  very  reverse  of  amber,  which,  itself 
a  valuable  substance,  usually  includes  trifles; 
whereas,  these  trifles  being  in  themselves  very 
insignificant  and  trifling  do,  nevertheless, 
serve  to  perpetuate  a  great  deal  of  what  is 
rare  and  valuable  in  ancient  manners,  and  to 
record  many  curious  and  minute  facts,  which 
could  have  been  preserved  and  conveyed 
through  no  other  medium. 

"Charles  Pinckney  professed  an  exquisite 
appreciation  of  the  beautiful  in  nature  and  in 
art.  His  collection  of  paintings,  statuettes, 
medals,  etc.,  rendered  his  house  almost  a  mu- 
seum. His  fine  library,  occupying  an  entire 
suite  of  three  large  rooms — the  floors  and 
windows  of  which  were  kept  richly  carpeted 

289 


THE  PINCKNEY  DRAUGHT 

and  curtained,  while  the  ceilings  were  deco- 
rated with  classic  representations — is  sup- 
posed to  have  contained  near  twenty  thousand 
of  the  rarest,  and  choicest  books,  collected  from 
every  part  of  the  Continent,  and  in  every  lan- 
guage spoken  in  the  enlightened  world. " 

Thomas  Pinckney, 

who  settled  in  South  Carolina  in  1687, 
was  the  father  of 

(2)  (3) 

William,  Thomas. 

Master  in  Chancery. 

His  Son, 
Col.  Chas.  Pinckney. 

His  Son, 
Governor  Charles  Pinckney. 

His  Son, 
Hon.  Henry  L.  Pinckney. 

"A  life  of  Charles  Pinckney  was  prepared 
and  in  the  possession  of  the  Hon.  Henry  L. 
Pinckney  for  revision  and  addition;  with  it 
were  his  valuable  papers.  The  fire  of  1861, 
which  desolated  the  city  of  Charleston,  de- 
stroyed almost  everything,  and  this,  and  the 
former  essay,  are  compiled  from  many  stray 
290 


OF  PINCKNEY  PEESONALLY 

notes,  mutilated  manuscripts  and  a  few  pa- 
pers, still  in  our  possession. 

"A  very  strange  and  melancholy  feeling 
overtakes  us  as  we  search  the  remains  of 
Charles  Pinckney.  Here  is  a  man  upon  whom 
Heaven  appears  to  have  showered  its  gifts. 
Distinguished  in  ancestry,  possessing  fine  in- 
tellect, vigorous  health,  and  large  fortune, 
with  his  political  ambition  fully  gratified,  of 
refined  tastes  and  cultivation,  linking  his 
name  successfully  and  eminently,  with  his  day 
and  his  race,  and  yet,  here  are  his  memorials 
in  a  few  tattered  bits  of  paper,  scarcely  deci- 
pherable. His  ashes  are  in  the  family  bury- 
ing ground.  The  spot  is  known.  No  stone, 
however,  marks  his  final  resting-place.  His 
house  in  Charleston  years  ago,  passed  into 
the  hands  of  the  stranger,  and  has  been  torn 
down.  The  very  earth  has  been  removed,  and 
now  forms  one  of  the  fortifications  of  White 
Point  Battery,  erected  during  the  late  war  for 
the  defense  of  the  city  of  Charleston.  The 
library  is  broken  and  scattered.  The  picture 
of  Lady  Hamilton,  and  his  own  portrait,  are 
the  only  two  that  we  know  of  that  remain 
of  his  once  splendid  gallery.  The  beautiful 

291 


THE  PINCKNEY  DEAUGHT 

grounds  of  "FEE  FARM"  have  disappeared, 
and  the  plough  runs  its  furrows  through  the 
grove,  and  the  grave-yard."  DeBow's  Ee- 
view,  April  2,  1866. 


292 


APPENDIX 


OF  THE 

I   UNIVERSi 


293 


APPENDIX 

MB.  CHARLES  PINCKNEY'S  DRAUGHT  OF  A  FEDERAL 
GOVERNMENT 

We  the  people  of  the  States  of  New  Hampshire 
Massachusetts  Rhode  Island  &  Providence  Planta- 
tions —  Connecticut  New  York  New  Jersey  Penn- 
sylvania Delaware  Maryland  Virginia  North  Caro- 
line South  Carolina  &  Georgia  do  ordain  declare 
&  establish  the  following  Constitution  for  the  Gov- 
ernment of  Ourselves  and  Posterity. 

Article  1: 

The  Stile  of  This  Government  shall  be  The  United 
States  of  America  &  The  Government  shall  consist 
of  supreme  legislative  Executive  and  judicial 
Powers  — 

2 

The  Legislative  Power  shall  be  vested  in  a  Con- 
gress To  consist  of  Two  separate  Houses — One  to  be 
called  The  House  of  Delegates  &  the  other  the 
Senate  who  shall  meet  on  the  day  of  in 

every  Year 

3 

The  members  .of  the  House  of  Delegates  shall  be 
chosen  every  Year  by  the  people  of  the  several 

295 


APPENDIX 

States  &  the  qualification  of  the  electors  shall  be 
the  same  as  those  of  the  Electors  in  the  several 
States  for  their  legislatures — each  member  shall 
have  been  a  citizen  of  the  United  States  for 
Years — shall  be  of  Yea  of  age  &  a  resident  of 
the  State  he  is  chosen  for — until  a  census  of  the 
people  shall  be  taken  in  the  manner  herein  after 
mentioned  the  House  of  Delegates  shall  consist  of 
to  be  chosen  from  the  different  states  in  the 
following  proportions — for  New  Hampshire, 
for  Massachusetts  for  Rhode  Island  .  for 

Connecticut.        for  New  York        for  New  Jersey, 
for  Pennsylvania.  for  Delaware  for 

Maryld        for  Virginie.         for  North  Caroline 

for  South   Carolina .   for  Georgia  .  &  the 

Legislature  shall  hereafter  regulate  the  number  of 
delegates  by  the  number  of  inhabitants  according 
to  the  Provisions  hereinafter  made,  at  the  rate  of 

one  for  every  thousand all  money  bills  of 

every  kind  shall  originate  in  the  house  of  Delegates 
&  shall  not  be  altered  by  the  Senate — The  House 
of  Delegates  shall  exclusively  possess  the  power  of 
impeachment  &  shall  choose  its  own  Officers  &  Va- 
cancies therein  shall  be  supplied  by  the  Executive 
authority  of  the  State  in  the  representation  from 
which  they  shall  happen — 


The  Senate  shall  be  elected  &  chosen  by  the  House 

of  Delegates  which  House  immediately  after  their 

meeting  shall  choose  by  ballot  Senators  from 

among  the  Citizens  &  residents  of  New  Hampshire. 

296 


THE  PINCKNEY  DRAUGHT 

from  among  those  of  Massachusetts.  from 
among  those  of  Rhode  Island.  from  among 
those  of  Connecticut.  from  among  those  of  New 
York.  from  among  those  of  New  Jersey  from 
among  those  of  Pennsylvanie  from  among  those 
of  Delaware —  from  among  those  of  Maryland, 
from  among  those  of  Virginia  from  among 
those  of  North  Caroline  from  among  those  of 
South  Caroline  &  from  among  those  of  Georgia — 

The  Senators  chosen  from  New  Hampshire  Mas- 
sachusetts Rhode  Island  &  Connecticut  shall  form 
one  class — those  from  New  York.  New  Jersey  Penn- 
sylvanie &  Delaware  one  class — &  those  from  Mary- 
land Virginie  North  Caroline  South  Caroline  & 
Georgia  one  class — 

The    House    of    Delegates    shall    number    these 
Classes  one  two  three  &  fix  the  times  of  their  serv- 
ice by  Lot — the  first  Class  shall  serve  for         Years 
—the   second   for          Years   &   the   third   for 
Years — as  their  Times  of  service  expire  the  House 
of  Delegates  shall  fill  them  up  by  Elections  for 
Years  &  they  shall  fill  all  Vacancies  that  arise  from 
death  or  resignation   for  the   Time  of  service  re- 
maining of  the  members  so  dying  or  resigning — 

Each  Senator  shall  be  years  of  age  at  leest 
— shall  have  been  a  Citizen  of  the  United  States  at 
4  Years  before  his  Election  &  shall  be  a  resident 
of  the  state  he  is  chcsen  from — 

The  Senate  shall  choose  its  own  Officers 


297 


APPENDIX 


Each  State  shall  prescribe  the  time  &  manner 
of  holding  Elections  by  the  People  for  the  house  of 
Delegates  &  the  House  of  Delegates  shall  be  the 
judges  of  the  Elections  returns  &  Qualifications  of 
their  members 

In  each  house  a  Majority  shall  constitute  a  Quo- 
rum to  do  business — Freedom  of  Speech  &  Debate 
in  the  legislature  shall  not  be  impeached  or  Ques- 
tioned in  any  place  out  of  it  &  the  Members  of 
both  Houses  shall  in  all  cases  except  for  Treason 
Felony  or  breach  of  the  Peace  be  free  from  arrest 
during  their  attendance  at  Congress  &  in  going 
to  &  returning  from  it — both  houses  shall  keep 
journals  of  their  Proceedings  &  publish  them 
except  on  secret  occasions  &  the  yeas  and  nays 
may  be  entered  thereon  at  the  desire  of  one  of 

the  members  present. 

Neither  house  without  the  consent  of  the  other 
shall  adjourn  for  more  than  days  nor  to  any 

Place  but  where  they  are  sitting. 

The  members  of  each  house  shall  not  be  eligible 
to  or  capable  of  holding  any  office  under  the  Union 
during  the  time  for  which  they  have  been  respec- 
tively elected  nor  the  members  of  the  Senate  for  one 
Year  after  — 

The  members  of  each  house  shall  be  paid  for  their 
services  by  the  State's  which  they  represent — 

Every  bill  which  shall  have  passed  the  Legis- 
lature shall  be  presented  to  the  President  of  the 
United  States  for  his  revision — if  he  approves  it  he 
shall  sign  it — but  if  he  does  not  approve  it  he 
298 


THE  PINCKNEY  DRAUGHT 

shall  return  it  with  his  objections  to  the  house  it 
originated  in,  which  house  if  two  thirds  of  the 
members  present,  notwithstanding  the  Presidents 
objections  agree  to  pass  it,  shall  send  it  to  the  other 
house  with  the  Presidents  Objections,  where  if  two 
thirds  of  the  members  present  also  agree  to  pass  it, 
the  same  shall  become  a  law — &  all  bills  sent  to  the 
President  &  not  returned  by  him  within  days 
shall  be  laws  unless  the  Legislature  by  their  ad- 
journment prevent  their  return  in  which  ease  they 
shall  not  be  laws. 

6th 

The  Legislature  of  the  United  States  shall  have 
the  power  to  lay  &  collect  Taxes,  Duties,  Imposts 
&  Excises 

To  regulate  Commerce  with  all  nations  &  among 
the  several  states — 

To  borrow  money  &  emit  bills  of  Credit 

To  establish  Post  Offices 

To  raise  armies 

To  build  &  equip  Fleets 

To  pass  laws  for  arming  organising  &  disciplining 
the  Militia  of  the  United  States — 

To  subdue  a  rebellion  in  any  state  on  application 
of  its  legislature 

To  coin  money  &  regulate  the  Value  of  all  coins 
&  fix  the  Standard  of  weights  &  measures 

To  provide  such  Dock  Yards  &  arsenals  &  erect 
such  fortifications  as  may  be  necessary  for  the 
United  States,  &  to  exercise  exclusive  Jurisdiction 
therein 


299 


APPENDIX 

To  appoint  a  Treasurer  by  ballott 

To  constitute  Tribunals  inferior  to  the  Supreme 
Court 

To  establish  Post  &  military  roads 

To  establish  and  provide  for  a  national  Univer- 
sity at  the  Seat  of  the  Government  of  the  United 
States — 

To  establish  uniform  rules  of  Naturalization 

To  provide  for  the  establishment  of  a  Seat  of  Gov- 
ernment for  the  United   States  not  exceeding 
miles   square   in   which  they   shall   have   exclusive 
jurisdiction 

To  make  rules  concerning  Captures  from  an 
Enemy 

To  declare  the  law  &  Punishment  of  piracies  & 
felonies  at  sea  &  of  counterfeiting  Coin  &  of  all 
offences  against  the  Laws  of  Nations 

To  call  forth  the  aid  of  the  Militia  to  execute  the 
laws  of  the  Union  enforce  treaties  suppress  insur- 
rections .&  repel  invasions 

And  to  make  all  laws  for  carrying  the  foregoing 
powers  into  execution. — 

The  Legislature  of  the  United  States  shall  have 
the  Power  to  declare  the  Punishment  of  Treason 
which  shall  consist  only  in  levying  War  against  the 
United  States  or  any  of  them  or  in  adhering  to 
their  Enemies. — No  person  shall  be  convicted  of 
Treason  but  by  the  Testimony  of  two  Witnesses.— 

The  proportions  of  direct  Taxation  shall  be  regu- 
lated by  the  whole  number  of  inhabitants  of  every 
description  which  number  shall  within  Years 
after  the  first  meeting  of  the  Legislature  &  within 
the  term  of  every  Years  after  be  taken  in 

300 


THE  PINCKNEY  DRAUGHT 

the    manner    to    be    prescribed    by    the    legislature 

No  tax  shall  be  laid  on  articles  exported  from 
the  States — nor  capitation  tax  but  in  proportion  to 
the  Census  before  directed 

All  laws  regulating  Commerce  shall  require  the 
assent  of  two  thirds  of  the  members  present  in  each 
house — 

The  United  States  shall  not  grant  any  title  of 
Nobility — 

The  Legislature  of  the  United  States  shall  pass  no 
Law  on  the  subject  of  Religion,  nor  touching  or 
abridging  the  Liberty  of  the  Press  nor  shall  the 
Privilege  of  the  Writ  of  Habeas  Corpus  ever  be  sus- 
pended except  in  case  of  Rebellion  or  Invasion 

All  acts  made  by  the  Legislature  of  the  United 
States  pursuant  to  this  Constitution  &  all  Trea- 
ties made  under  the  authority  of  the  United  States 
shall  be  the  Supreme  Law  of  the  Land  &  all  Judges 
shall  be  bound  to  consider  them  as  such  in  their 
decisions 


The  Senate  shall  have  the  sole  and  exclusive  power 
to  declare  war  &  to  make  treaties  &  to  appoint  Am- 
bassadors &  other  Ministers  to  Foreign  nations  & 
Judges  of  the  Supreme  Court 

They  shall  have  the  exclusive  power  to  regulate 
the  manner  of  deciding  all  disputes  &  Controver- 
sies now  subsisting  or  which  may  arise  between  the 
States  respecting  Jurisdiction  or  Territory 


301 


APPENDIX 

8 

The  Executive  Power  of  the  United  States  shall 
be  vested  in  a  President  of  the  United  States  of 
America  which  shall  be  his  stile  &  his  title  shall  be 

His  Excellency He  shall  be  elected  for 

Years  &  shall  be  reeligible 

He  shall  from  time  give  information  to  the 
Legislature  of  the  state  of  the  Union  &  recom- 
mend to  their  consideration  the  measures  he  may 
think  necessary — he  shall  take  care  that  the  laws 
of  the  United  States  be  duly  executed:  he  shall 
commission  all  the  Officers  of  the  United  States 
&  except  as  to  Ambassadors  other  ministers  & 
Judges  of  the  Supreme  Court  he  shall  nominate 
&  with  the  consent  of  the  Senate  appoint  all  other 
Officers  of  the  United  States — He  shall  receive  pub- 
lic Ministers  from  foreign  nations  &  may  cor- 
respond with  the  Executives  of  the  different  states — 
He  shall  have  power  to  grant  pardons  and  reprieves 
except  in  impeachments — He  shall  be  commander  in 
chief  of  the  army  &  navy  of  the  United  States  & 
of  the  Militia  of  the  several  states,  &  shall  receive 
a  compensation  which  shall  not  be  increased  or  di- 
minished during  his  continuance  in  office — At  Enter- 
ing on  the  Duties  of  his  office  he  shall  take  an  Oath 
to  faithfully  execute  the  duties  of  a  President  of 
the  United  States — He  shall  be  removed  from  his 
office  on  impeachment  by  the  house  of  Delegates  & 
Conviction  in  the  supreme  Court  of  Treason  bribery 
or  Corruption — In  case  of  his  removal  death  resig- 
nation or  disability  The  President  of  the  Senate  shall 
exercise  the  duties  of  his  office  until  another  Presi- 
302 


THE  PINCKNEY  DRAUGHT 

dent  be  chosen — &  in  case  of  the  death  of  the 
President  of  the  Senate  the  Speaker  of  the  House 
of  Delegates  shall  do  so 


The  Legislature  of  the  United  States  shall  have 
the  Power  &  it  shall  be  their  duty  to  establish 
such  Courts  of  Law  Equity  &  Admiralty  as  shall 
be  necessary — the  Judges  of  these  Courts  shall  hold 
their  Offices  during  good  behavior  &  recieve  a 
compensation  which  shall  not  be  increased  or  dimin- 
ished during  their  continuance  in  office — One  of 
these  Courts  shall  be  termed  the  Supreme  Court 
whose  Jurisdiction  shall  extend  to  all  cases  arising 
under  the  laws  of  the  United  States  or  affecting 
ambassadors  other  public  Ministers  &  Consuls — 
To  the  trial  of  impeachments  of  Officers  of  the  United 
States — To  all  cases  of  Admiralty  &  maritime  juris- 
diction— In  cases  of  impeachment  affecting  Am- 
bassadors and  other  public  Ministers  the  Jurisdic- 
tion shall  be  original  &  in  all  the  other  cases  appel- 
late- 
All  Criminal  offences  (except  in  cases  of  im- 
peachment) shall  be  tried  in  the  state  where  they 
shall  be  committed — the  trial  shall  be  open  &  pub- 
lic &  be  by  Jury — 

10 

Immediately  after  the  first  census  of  the  people 

of    United    States    the    House    of    Delegates    shall 

apportion  the  Senate  by  electing  for  each  State  out 

of  the   Citizens  resident  therein   one   Senator   for 

303 


APPENDIX 

every  members  such   state   shall   have   in   the 

house  of  Delegates — Each  State  however  shall  be  en- 
titled to  have  at  least  one  member  in  the  Senate — 

11 

No  State  shall  grant  Letters  of  marque  &  reprisal 
or  enter  into  treaty  or  alliance  or  confederation 
nor  grant  any  title  of  nobility  nor  without  the  Con- 
sent of  the  Legislature  of  the  United  States  lay 
any  impost  on  imports — nor  keep  Troops  or  Ships 
of  War  in  Time  of  peace — nor  enter  into  compacts 
with  other  states  or  foreign  powers  or  emit  bills 
of  Credit  or  make  anything  but  Gold  Silver  or  Cop- 
per a  Tender  in  payment  of  debts  nor  en- 
gage in  War  except  for  self  defence  when  actually 
invaded  or  the  danger  of  invasion  is  so  great  as 
not  to  admit  of  delay  until  the  Government  of 
the  United  States  can  be  informed  thereof — &  to 
render  these  prohibitions  effectual  the  Legislature 
of  the  United  States  shall  have  the  power  to  revise 
the  laws  of  the  several  states  that  may  be  sup- 
posed to  infringe  the  Powers  exclusively  delegated 
by  the  Constitution  to  Congress  &  to  negative  &  an- 
nul such  as  do 

12 

The  Citizens  of  each  state  shall  be  entitled  to  all 
privileges  &  immunities  of  Citizens  in  the  several 
states — 

Any  person  charged  with  Crimes  in  any 
State  fleeing  from  Justice  in  another  shall  on  de- 
mand of  the  Executive  of  the  State  from  which 
304 


THE  PINCKNEY  DEAUGHT 

he  fled   be   delivered   up   &   removed  to  the   State 
having  jurisdiction  of  the  Offence — 

13 

Full  faith  shall  be  given  in  each  State  to  the 
acts  of  the  Legislature  &  to  the  records  &  judicial 
Proceedings  of  the  Courts  &  Magistrates  of  every 
State 

14 

The  Legislature  shall  have  power  to  admit  new 
States  into  the  Union  on  the  same  terms  with  the 
original  States  provided  two  thirds  of  the  members 
present  in  both  houses  agree 

15 

On  the  application  of  the  legislature  of  a  State 
the  United  States  shall  protect  it  against  domestic 
insurrections 

16 

If  Two  Thirds  of  the  Legislatures  of  the  States 
apply  for  the  same  The  Legislature  of  the  United 
States  shall  call  a  Convention  for  the  purpose  of 
amending  the  Constitution — Or  should  Congress 
with  the  Consent  of  Two  thirds  of  each  house  pro- 
pose to  the  States  amendments  to  the  same — the 
agreement  of  Two  Thirds  of  the  Legislatures  of  the 
States  shall  be  sufficient  to  make  the  said  amend- 
ments Parts  of  the  Constitution 

The  Ratifications  of  the  Conventions 

of  States  shall  be  sufficient  for  organiz^ 

ing  this  Constitution. — 

305 


DRAUGHT  OP  THE  COMMITTEE  OF  DETAIL. 

We  the  People  of  the  States  of  New  Hampshire, 
Massachusetts,  Rhode-Island,  and  Providence  Plan- 
tations, Connecticut,  New  York,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  North- 
Carolina,  South-Carolina,  and  Georgia,  do  ordain, 
declare  and  establish  the  following  Constitution 
for  the  Government  of  Ourselves  and  our  Posterity. 

Article  I 

The  stile  of  this  Government  shall  be,  "The 
United  States  of  America." 

II 

The  Government  shall  consist  of  supreme  legis- 
lative, executive  and  judicial  powers. 

Ill 

The  legislative  power  shall  be  vested  in  a  Con- 
gress, to  consist  of  two  separate  and  distinct  bodies 
of  men,  a  House  of  Representatives,  and  a  Senate; 
each  of  which  shall  in  all  cases,  have  a  negative  on 
the  other.  The  Legislature  shall  meet  on  the  first 
Monday  in  December  in  every  year. 
306 


THE  COMMITTEE'S  DRAUGHT 
IV 

Sect.  1.  The  Members  of  the  House  of  Repre- 
sentatives shall  be  chosen  every  second  year,  by  the 
people  of  the  several  States  comprehended  within 
this  Union.  The  qualifications  of  the  electors  shall 
be  the  same,  from  time  to  time,  as  those  of  the 
electors  in  the  several  States,  of  the  most  numerous 
branch  of  their  own  legislatures. 

Sect.  2.  Every  Member  of  the  House  of  Repre- 
sentatives shall  be  of  the  age  of  twenty-five  years 
at  least;  shall  have  been  a  citizen  in  the  United 
States  for  at  least  three  years  before  his  election; 
and  shall  be,  at  the  time  of  his  election,  a  resident 
of  the  State  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at 
its  first  formation,  and  until  the  number  of  citizens 
and  inhabitants  shall  be  taken  in  the  manner  herein 
after  described,  consist  of  sixty-five  Members,  of 
whom  three  shall  be  chosen  in  New  Hampshire, 
eight  in  Massachusetts,  one  in  Rhode-Island  and 
Providence  Plantations,  five  in  Connecticut,  six  in 
New  York,  four  in  New  Jersey,  eight  in  Pennsyl- 
vania, one  in  Delaware,  six  in  Maryland,  ten  in  Vir- 
ginia, five  in  North-Carolina,  five  in  South-Carolina, 
and  three  in  Georgia. 

Sect.  4.  As  the  proportions  of  numbers  in 
the  different  States  will  alter  from  time  to  time; 
as  some  of  the  States  may  hereafter  be  divided;  as 
others  may  be  enlarged  by  addition  of  territory;  as 
two  or  more  States  may  be  united;  as  new  States 
will  be  erected  within  the  limits  of  the  United 
States,  the  Legislature  shall,  in  each  of  these  cases, 
307 


APPENDIX 

regulate  the  number  of  representatives  by  the  num- 
ber of  inhabitants,  according  to  the  provisions 
herein  after  made,  at  the  rate  of  one  for  every  forty 
thousand. 

Sect.  5.  All  bills  for  raising  or  appropriating 
money,  and  for  fixing  the  salaries  of  the  officers  of 
government,  shall  originate  in  the  House  of 
Representatives,  and  shall  not  be  altered  or  amended 
by  the  Senate.  No  money  shall  be  drawn  from  the 
public  Treasury,  but  in  pursuance  of  appropria- 
tions that  shall  originate  in  the  House  of  Repre- 
sentatives. 

Sect.  6.  The  House  of  Representatives  shall 
have  the  sole  power  of  impeachment.  It  shall 
choose  its  Speaker  and  other  officers. 

Sect.  7.  Vacancies  in  the  House  of  Representa- 
tives shall  be  supplied  by  writs  of  election  from  the 
executive  authority  of  the  State,  in  the  representa- 
tion from  which  they  shall  happen. 


Sect.  1.  The  Senate  of  the  United  States  shall 
be  chosen  by  the  Legislatures  of  the  several  States. 
Each  Legislature  shall  chuse  two  members.  Va- 
cancies may  be  supplied  by  the  Executive  until  the 
next  meeting  of  the  Legislature.  Each  member 
shall  have  one  vote. 

Sect.   2.     The  Senators   shall  be   chosen   for  six 

years;  but  immediately  after  the  first  election  they 

shall  be  divided,  by  lot,  into  three  classes,  as  nearly 

as  may   be,   numbered   one,   two   and   three.     The 

308 


THE  COMMITTEE'S  DRAUGHT 

seats  of  the  members  of  the  first  class  shall  be  va- 
cated at  the  expiration  of  the  second  year,  of  the 
second  class  at  the  expiration  of  the  fourth  year, 
of  the  third  class  at  the  expiration  of  the  sixth  year, 
so  that  a  third  part  of  the  members  may  be  chosen 
every  second  year. 

Sect.  3.  Every  member  of  the  Senate  shall  be 
of  the  age  of  thirty  years  at  least;  shall  have  been 
a  citizen  in  the  United  States  for  at  least  four  years 
before  his  election;  and  shall  be,  at  the  time  of  his 
election,  a  resident  of  the  State  for  which  he  shall 
be  chosen. 

Sect.  4.  The  Senate  shall  chuse  its  own  Presi- 
dent and  other  officers. 

VI 

Sect.  1.  The  times  and  places  and  the  manner  of 
holding  the  elections  of  the  members  of  each  House 
shall  be  prescribed  by  the  Legislature  of  each  State ; 
but  their  provisions  concerning  them  may,  at  any 
time,  be  altered  by  the  Legislature  of  the  United 
States. 

Sect.  2.  The  Legislature  of  the  United  States 
shall  have  authority  to  establish  such  uniform 
qualifications  of  the  members  of  each  House,  with 
regard  to  property,  as  to  the  said  Legislature  shall 
seem  expedient. 

Sect.  3.  In  each  House  a  majority  of  the  mem- 
bers shall  constitute  a  quorum  to  do  business;  but 
a  smaller  number  may  adjourn  from  day  to  day. 

Sect.  4.  Each  House  shall  be  the  judge  of  the 
309 


APPENDIX 

elections,  returns  and  qualifications  of  its  own  mem- 
bers. 

Sect.  5.  Freedom  of  speech  and  debate  in  the 
Legislature  shall  not  be  impeached  or  questioned 
in  any  court  or  place  out  of  the  Legislature;  and 
the  members  of  each  House  shall,  in  all  cases,  ex- 
cept treason,  felony  and  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at 
Congress,  and  in  going  to  and  returning  from  it. 

Sect.  6.  Each  House  may  determine  the  rules 
of  its  proceedings ;  may  punish  its  members  for  dis- 
orderly behaviour;  and  may  expel  a  member. 

Sect.  7.  The  House  of  Eepresentatives,  and  the 
Senate,  when  it  shall  be  acting  in  a  legislative  ca^ 
pacity,  shall  keep  a  journal  of  their  proceedings, 
and  shall,  from  time  to  time,  publish  them :  and  the 
yeas  and  nays  of  the  members  of  each  House,  on 
any  question,  shall,  at  the  desire  of  one-fifth  part 
of  the  members  present,  be  entered  on  the  journal. 

Sect.  8.  Neither  House,  without  the  consent  of 
the  other,  shall  adjourn  for  more  than  three  days 
nor  to  any  other  place  than  that  at  which  the  two 
Houses  are  sitting.  But  this  regulation  shall  not 
extend  to  the  Senate,  when  it  shall  exercise  the  pow- 
ers mentioned  in  the  article. 

Sect.  9.  The  members  of  each  House  shall  be 
ineligible  to,  and  incapable  of  holding  any  office 
under  the  authority  of  the  United  States,  during 
the  time  for  which  they  shall  respectively  be  elected : 
and  the  members  of  the  Senate  shall  be  ineligible 
to,  and  incapable  of  holding  any  such  office  for  one 
year  afterwards. 

Sect.  10.  The  members  of  each  House  shall  re- 
310 


THE  COMMITTEE'S  DRAUGHT 

ceive  a  compensation  for  their  services,  to  be  ascer- 
tained and  paid  by  the  State,  in  which  they  shall  be 
chosen. 

Sect.  11.  The  enacting  stile  of  the  laws  of  the 
United  States  shall  be.  "Be  it  enacted,  and  it  is 
hereby  enacted  by  the  House  of  Representatives, 
and  by  the  Senate  of  the  United  States,  in  Congress 
assembled. ' ' 

Sect.  12.  Each  House  shall  possess  the  right  of 
originating  bills,  except  in  the  cases  beforemen- 
tioned. 

Sect.  13.  Every  bill,  which  shall  have  passed 
the  House  of  Representatives  and  the  Senate,  shall, 
before  it  become  a  law,  be  presented  to  the  Presi- 
dent of  the  United  States  for  his  revision :  if,  upon 
such  revision,  he  approve  of  it,  he  shall  signify  his 
approbation  by  signing  it:  But  if,  upon  such  re- 
vision, it  shall  appear  to  him  improper  for  being 
passed  into  a  law,  he  shall  return  it,  together  with 
his  objections  against  it,  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  objections 
at  large  on  their  Journal,  and  proceed  to  reconsider 
the  bill.  But,  if  after  such  reconsideration,  two 
thirds  of  that  House  shall,  notwithstanding  the  ob- 
jections of  the  President,  agree  to  pass  it,  it  shall, 
together  with  his  objections,  be  sent  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered, 
and,  if  approved  by  two  thirds  of  the  other  House 
also,  it  shall  become  a  law.  But,  in  all  such  cases, 
the  votes  of  both  Houses  shall  be  determined  by 
Yeas  and  Nays;  and  the  names  of  the  persons  vot- 
ing for  or  against  the  bill  shall  be  entered  in  the 
Journal  of  each  House  respectively.  If  any  bill 
311 


APPENDIX 

shall  not  be  returned  by  the  President  within  seven 
days  after  it  shall  have  been  presented  to  him,  it 
shall  be  a  law,  unless  the  Legislature,  by  their  ad- 
journment, prevent  its  return ;  in  which  case  it  shall 
not  be  a  law. 

VII 

Sect.  1.  The  Legislature  of  the  United  States 
shall  have  the  power  to  lay  and  collect  taxes,  duties, 
imposts  and  excises; 

To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States; 

To  establish  an  uniform  rule  of  naturalization 
throughout  the  United  States ; 

To  coin  money; 

To  regulate  the  value  of  foreign  coin; 

To  fix  the  standard  of  weights  and  measures ; 

To  establish  post-offices; 

To  borrow  money,  and  emit  bills  on  the  credit 
of  the  United  States; 

To  appoint  a  Treasurer  by  ballot; 

To  constitute  tribunals  inferior  to  the  supreme 
court; 

To  make  rules  concerning  captures  on  land  and 
water ; 

To  declare  the  law  and  punishment  of  piracies 
and  felonies  committed  on  the  high  seas;  and  the 
punishment  of  counterfeiting  the  coin  of  the  United 
States,  and  of  offences  against  the  law  of  nations; 

To  subdue  a  rebellion  in  any  State,  on  the  appli- 
cation of  its  Legislature; 

312 


THE  COMMITTEE'S  DRAUGHT 

To  make  war; 

To  raise  armies; 

To  build  and  equip  fleets; 

To  call  forth  the  aid  of  the  militia,  in  order  to 
execute  the  laws  of  the  Union,  enforce  treaties,  sup- 
press insurrections,  and  repel  invasions; 

And  to  make  all  laws  that  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested,  by  this  Con- 
stitution, in  the  government  of  the  United  States,  or 
in  any  department  or  officer  thereof, 

Sect.  2.  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  the  United 
States,  or  any  of  them,  and  in  adhering  to  the  ene- 
mies of  the  United  States,  or  any  of  them.  The 
Legislature  of  the  United  States  shall  have  power 
to  declare  the  punishment  of  treason.  No  person 
shall  be  convicted  of  treason,  unless  on  the  testimony 
of  two  witnesses.  No  attainder  of  treason  shall 
work  corruption  of  blood,  nor  forfeiture,  except 
during  the  life  of  the  person  attainted. 

Sect.  3.  The  proportions  of  direct  taxation  shall 
be  regulated  by  the  whole  number  of  white  and 
other  free  citizens  and  inhabitants,  of  every  age, 
sex  and  condition,  including  those  bound  to  servi- 
tude for  a  term  of  years,  and  three  fifths  of  all 
other  persons  not  comprehended  in  the  foregoing 
description,  (except  Indians  not  paying  taxes) 
which  number  shall,  within  six  years  after  the  first 
meeting  of  the  Legislature,  and  within  the  term  of 
every  ten  years  afterwards,  be  taken  in  such  man- 
ner as  the  said  Legislature  shall  direct. 
313 


APPENDIX 

Sect.  4.  No  tax  or  duty  shall  be  laid  by  the 
Legislature  on  articles  exported  from  any  State; 
nor  on  the  migration  or  importation  of  such  persons 
as  the  several  States  shall  think  proper  to  admit; 
nor  shall  such  migration  or  importation  be  pro- 
hibited. 

Sect.  5.  No  capitation  tax  shall  be  laid,  unless  in 
proportion  to  the  census  hereinbefore  directed  to 
be  taken. 

Sect.  6.  No  navigation  act  shall  be  passed  with- 
out the  assent  of  two  thirds  of  the  members  present 
in  each  House. 

Sect.  7.  The  United  States  shall  not  grant  any 
title  of  nobility. 

VIII 

The  acts  of  the  Legislature  of  the  United  States 
made  in  pursuance  of  this  Constitution,  and  all 
treaties  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  several 
States,  and  of  their  citizens  and  inhabitants;  and 
the  judges  in  the  several  States  shall  be  bound 
thereby  in  their  decisions;  anything  in  the  Consti- 
tutions or  laws  of  the  several  States  to  the  contrary 
notwithstanding. 

vim 

Sect.  1.  The  Senate  of  the  United  States  shall 
have  power  to  make  treaties,  and  to  appoint  am- 
bassadors and  judges  of  the  supreme  court. 

Sect.  2.  In  all  disputes  and  controversies  now 
314 


THE  COMMITTEE'S  DRAUGHT 

subsisting,  or  that  may  hereafter  subsist  between 
two  or  more  States,  respecting  jurisdiction  or  ter- 
ritory, the  Senate  shall  possess  the  following  pow- 
ers. Whenever  the  Legislature,  or  the  Executive 
authority,  or  the  lawful  agent  of  any  State,  in  con- 
troversy with  another,  shall,  by  memorial  to  the 
Senate,  state  the  matter  in  question,  and  apply  for 
a  hearing;  notice  of  such  memorial  and  application 
shall  be  given,  by  order  of  the  Senate,  to  the  Legis- 
lature or  the  Executive  Authority  of  the  other  State 
in  controversy.  The  Senate  shall  also  assign  a  day 
for  the  appearance  of  the  parties,  by  their  agents, 
before  that  House.  The  agents  shall  be  directed  to 
appoint,  by  joint  consent,  commissioners  or  judges 
to  constitute  a  court  for  hearing  and  determining  the 
matter  in  question.  But  if  the  agents  cannot  agree, 
the  Senate  shall  name  three  persons  out  of  each  of 
the  several  States,  and  from  the  list  of  such  persons 
each  party  shall  alternately  strike  out  one,  until 
the  number  shall  be  reduced  to  thirteen;  and  from 
that  number  not  less  than  seven  nor  more  than 
nine  names,  as  the  Senate  shall  direct,  shall,  in  their 
presence,  be  drawn  out  by  lot;  and  the  persons, 
whose  names  shall  be  so  drawn,  or  any  five  of  them 
shall  be  commissioners  or  judges  to  hear  and  finally 
determine  the  controversy;  provided  a  majority  of 
the  judges,  who  shall  hear  the  cause,  agree  in  the 
determination.  If  either  party  shall  neglect  to  at- 
tend at  the  day  assigned,  without  shewing  sufficient 
reasons  for  not  attending,  or,  being  present,  shall 
refuse  to  strike,  the  Senate  shall  proceed  to  nom- 
inate three  persons  out  of  each  State,  and  the  clerk 
315 


APPENDIX 

of  the  Senate  shall  strike  in  behalf  of  the  party 
absent  or  refusing.  If  any  of  the  parties  shall  re- 
fuse to  submit  to  the  authority  of  such  court;  or 
shall  not  appear  to  prosecute  or  defend  their  claim 
or  cause,  the  court  shall  nevertheless  proceed  to 
pronounce  judgment.  The  judgment  shall  be  final 
and  conclusive.  The  proceedings  shall  be  trans- 
mitted to  the  President  of  the  Senate,  and  shall  be 
lodged  among  the  public  records  for  the  security 
of  the  parties  concerned.  Every  commissioner  shall, 
before  he  sit  in  judgment,  take  an  oath,  to  be  ad- 
ministered by  one  of  the  judges  of  the  supreme  or 
superior  court  of  the  State  where  the  cause  shall  be 
tried,  "well  and  truly  to  hear  and  determine  the 
matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favour,  affection,  or  hope  of  reward.  ' 
Sect.  3.  All  controversies  concerning  lands 
claimed  under  different  grants  of  two  or  more 
States  whose  jurisdictions,  as  they  respect  such 
lands,  shall  have  been  decided  or  adjusted  subse- 
quent to  such  grants,  or  any  of  them,  shall,  on  ap- 
plication to  the  Senate,  be  finally  determined,  as 
near  as  may  be,  in  the  same  manner  as  is  before 
prescribed  for  deciding  controversies  between  dif- 
ferent States. 

X 

Sect.  1.  The  Executive  Power  of  the  United 
States  shall  be  vested  in  a  single  person.  His  stile 
shall  be,  "The  President  of  the  United  States  of 
Ameca;"  and  his  title  shall  be,  "His  Excellency". 
He  shall  be  elected  by  ballot  by  the  Legislature. 
316 


THE  COMMITTEE'S  DRAUGHT 

He  shall  hold  his  office  during  the  term  of  seven 
years;  but  shall  not  be  elected  a  second  time. 

Sect.  2.  He  shall,  from  time  to  time,  give  in- 
formation to  the  Legislature,  of  the  State  of  the 
Union :  he  may  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary,  and  ex- 
pedient: he  may  convene  them  on  extraordinary 
occasions.  In  case  of  disagreement  between  the  two 
Houses,  with  regard  to  the  time  of  adjournment,  he 
may  adjourn  them  to  such  time  as  he  shall  think 
proper:  he  shall  take  care  that  the  laws  of  the 
United  States  be  duly  and  faithfully  executed:  he 
shall  commission  all  the  officers  of  the  United 
States;  and  shall  appoint  officers  in  all  cases  not 
otherwise  provided  for  by  this  Constitution.  He 
shall  receive  Ambassadors,  and  may  correspond 
with  the  Supreme  Executives  of  the  several  States. 
He  shall  have  power  to  grant  reprieves  and  par- 
dons; but  his  pardon  shall  not  be  pleadable  in  bar 
of  an  impeachment.  He  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States.  He  shall, 
at  stated  times,  receive  for  his  services,  a  compen- 
sation, which  shall  neither  be  increased  nor  dimin- 
ished during  his  continuance  in  office.  Before  he 
shall  enter  on  the  duties  of  his  department,  he 
shall  take  the  following  Oath  or  Affirmation,  "I 
solemnly  swear,  (or  affirm)  that  I  will 
faithfully  execute  the  Office  of  President  of  the 
United  States  of  America. "  He  shall  be  removed 
from  his  office  on  impeachment  by  the  House  of 
Representatives,  and  conviction  in  the  Supreme 
317 


APPENDIX 

Court,  of  treason,  bribery,  or  corruption.  In  case 
of  his  removal  as  aforesaid,  death,  resignation,  or 
disability  to  discharge  the  powers  and  duties  of  his 
office,  the  President  of  the  Senate  shall  exercise 
those  powers  and  duties  until  another  President 
of  the  United  States  be  chosen,  or  until  the  disability 
of  the  President  be  removed. 

XI 

Sect.  1.  The  Judicial  Power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such 
Inferior  Courts  as  shall,  when  necessary,  from  time 
to  time,  be  constituted  by  the  Legislature  of  the 
United  States. 

Sect.  2.  The  Judges  of  the  Supreme  Court,  and 
of  the  Inferior  courts,  shall  hold  their  offices  during 
good  behaviour.  They  shall,  at  stated  times,  re- 
ceive for  their  services,  a  compensation,  which  shall 
not  be  diminished  during  their  continuance  in  of- 
fice. 

Sect.  3.  The  Jurisdiction  of  the  Supreme  Court 
shall  extend  to  all  cases  arising  under  laws  passed 
by  the  Legislature  of  the  United  States ;  to  all  cases 
affecting  Ambassadors,  other  Public  Ministers  and 
Consuls;  to  the  trial  of  impeachments  of  Officers  of 
the  United  States;  to  all  cases  of  Admiralty  and 
Maritime  Jurisdiction;  to  Contriversies  between 
two  or  more  States  (except  such  as  shall  regard 
Territory  or  Jurisdiction)  between  a  State  and 
citizens  of  another  State,  between  citizens  of  dif- 
ferent States,  and  between  a  State  or  the  citizens 
thereof  and  foreign  States,  citizens  or  subjects.  In 

318 


THE  COMMITTEE'S  DRAUGHT 

cases  of  Impeachment,  cases  affecting  Ambassadors, 
other  Public  Ministers  and  Consuls,  and  those  in 
which  a  State  shall  be  a  party,  this  Jurisdiction 
shall  be  original.  In  all  the  other  cases  before 
mentioned  it  shtill  be  appellate,  with  such  excep- 
tions and  under  such  regulations  as  the  Legislature 
shall  make.  The  Legislature  may  assign  any  part 
of  the  jurisdiction  above  mentioned  (except  the 
trial  of  the  President  of  the  United  States)  in  the 
manner  and  under  the  limitations  which  it  shall 
think  proper,  to  such  Inferior  Courts  as  it  shall 
constitute  from  time  to  time. 

Sect.  4.  The  trial  of  all  criminal  offences  (except 
in  cases  of  impeachments)  shall  be  in  the  State 
where  they  shall  be  committed;  and  shall  be  by 
jury. 

Sect.  5.  'Judgment,  in  cases  of  Impeachment, 
shall  not  extend  further  than  to  removal  from  office, 
and  disqualification  to  hold  and  enjoy  any  office  of 
honour,  trust  or  profit  under  the  United  States. 
But  the  party  convicted  shall  nevertheless  be  liable 
and  subject  to  indictment,  trial,  judgment  and  pun- 
ishment, according  to  law. 

XII 

No  State  shall  coin  money;  nor  grant  letters  of 
marque  and  reprisal ;  nor  enter  into  any  treaty,  alli- 
ance, or  confederation ;  nor  grant  any  title  of  nobil- 
ity. 

XIII 

No  State,  without  the  consent  of  the  Legislature 
319 


APPENDIX 

of  the  United  States,  shall  emit  bills  of  credit,  or 
make  anything  but  specie  a  tender  in  payment  of 
debts;  lay  imposts  or  duties  on  imports;  nor  keep 
troops  or  ships  of  war  in  time  of  peace;  nor  enter 
into  any  agreement  or  compact  with  another  State, 
or  with  any  foreign  power;  nor  engage  in  any  war, 
unless  it  shall  be  actually  invaded  by  enemies,  or 
the  danger  of  invasion  be  so  imminent,  as  not  to 
admit  of  a  delay,  until  the  Legislature  of  the  United 
States  can  be  consulted. 

XIIII 

The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
States. 

XV 

Any  person  charged  with  treason,  felony,  or  high 
misdemeanor  in  any  State,  who  shall  flee  from 
justice,  and  shall  be  found  in  any  other  State,  sliall, 
on  demand  of  the  Executive  Power  of  the  State 
from  which  he  fled,  be  delivered  up  and  removed 
to  the  State  having  jurisdiction  of  the  offence. 

XVI 

Full  faith  shall  be  given  in  each  State  to  the  acts 
of  the  Legislatures,  and  to  the  records  and  judicial 
proceedings  of  the  courts  and  magistrates  of  every 
other  State. 

XVII 

New   States  lawfully   constituted   or   established 
320 


THE  COMMITTEE'S  DRAUGHT 

within  the  limits  of  the  United  States,  may  be  ad- 
mitted, by  the  Legislature,  into  this  government; 
but  to  such  admission  the  consent  of  two  thirds  of 
the  Members  present  in  each  House  shall  be  neces- 
sary. If  a  new  State  shall  arise  within  the  limits 
of  any  of  the  present  States,  the  consent  of  the 
Legislatures  of  such  States  shall  be  also  necessary 
to  its  admission.  If  the  admission  be  consented  to, 
the  new  States  shall  be  admitted  on  the  same  terms 
with  the  original  States.  But  the  Legislature  may 
make  conditions  with  the  new  States  concerning  the 
public  debt,  which  shall  be  then  subsisting. 

XVIII 

The  United  States  shall  guaranty  to  each  State  a 
Republican  form  of  government;  and  shall  protect 
each  State  against  foreign  invasions,  and,  on  the 
application  of  its  Legislature,  against  domestic  vio- 
lence. 

XVIIII 

On  the  application  of  the  Legislatures  of  two 
thirds  of  the  States  in  the  Union,  for  an  amend- 
ment of  this  Constitution,  the  Legislature  of  the 
United  States  shall  call  a  Convention  for  that  pur- 
pose. 

XX 

The  Members  of  the  Legislatures,  and  the  execu- 
tive and  judicial  officers  of  the  United  States,  and 
of  the  several  States,  shall  be  bound  by  oath  to 
support  this  Constitution. 
321 


APPENDIX 
XXI 

The  ratification  of  the  Conventions  of 
States  shall  be  sufficient  for  organizing  this  Con- 
stitution. 

XXII 

This  Constitution  shall  be  laid  before  the  United 
States  in  Congress  assembled,  for  their  approbation ; 
and  it  is  the  opinion  of  this  Convention,  that  it 
should  be  afterwards  submitted  to  a  Convention 
chosen  in  each  State,  under  the  recommendation  of 
its  legislature,  in  order  to  receive  the  ratification  of 
such  Convention. 

XXIII 

To  introduce  this  government,  it  is  the  opinion  of 
this  Convention,  that  each  assenting  Convention 
should  notify  its  assent  and  ratification  to  the 
United  States  in  Congress  assembled ;  that  Congress, 
after  receiving  the  assent  and  ratification  of  the 
Conventions  of  States,  should  appoint 

and  publish  a  day,  as  early  as  may  be,  and  appoint 
a  place  for  commencing  proceedings  under  this 
Constitution;  that  after  such  publication,  the  Leg- 
islatures of  the  several  States  should  elect  Members 
of  the  Senate,  and  direct  the  election  of  Members 
of  the  House  of  Representatives ;  and  that  the  Mem- 
bers of  the  Legislature  should  meet  at  the  time  and 
place  assigned  by  Congress,  and  should,  as  soon  as 
may  be,  after  their  meeting,  choose  the  President 
of  the  United  States,  and  proceed  to  execute  this 
Constitution. 

322 


INDEX 


323 


INDEX 


Adams,  Secretary  J.  Q- 

Applies    to     Pinckney     for 

draught,  p.  4,  26 
Interview  with  Rufus  King, 

p.  145 
Ambassadors 

To    be     appointed     by    the 

Senate,  p.  82,  102,  210 
Article     III     of     Pinckney's 

Draught 
Relied    upon    by    Madison, 

p.  61,  62,  93,  99,  100 
Article      V      of      Pinckney's 

Draught 
Relied    upon    by    Madison, 

p.  61,  101 
Article    VIII    of    Pinckney's 

Draught 
Relied    upon    by    Madison, 

p.  60,  78,  79,  82,  84,  97 
Sustained   by   the   Observa- 
tions, p.  134 


Bancroft,  George, 

Expresses  the  general  judg- 
ment, p.  7 
Bill  of  Rights 

Not  adopted  by  the  Com- 
mittee or  the  convention, 
p.  270 

But  is  in  Pinckney's 
draughts  and  Observa- 
tions, p.  270 

Bridge  which  Madison  built 
For   Pinckney's    friends,    p. 


7,  21,  44 

Butler  Pierce  of  South  Caro- 
lina 

Thinks  election  by  the  peo- 
ple impracticable,  p.  87 

325 


Charges  of  Madison 

Analysed,   p.   58,   62,   63 
Chesapeak,  the  frigate, 
Surrender  of,  p.  56 
Citizens. 

The   clause    securing   privi- 
leges and  immunities,  p. 
252 
City  Tavern, 

Members  of  the  Convention 

dinner    at,  p.  239 
Committee  of  Detail 

Appointed  to  prepare  the 
Constitution,  p.  69,  232 

Report  of  the  Committee, 
p.  69 

Names  of  the  Committee, 
p.  75 

Secrecy  of  the  Committee, 
p.  75,  76 

Report  exceeds  instruc- 
tions, p.  70 

Consistent  silences  of  the 
Committee  until  death, 
p.  200 

How  the  Committee  fol- 
lowed Pinckney,  p.  213 

The        printing       of       the 

draught,  p.  233,  234 
Committee  of  Stvle 

Appointed,  p.  69 

Really  Committee  of  Re- 
vision, p.  78 

Correction      of      language, 

masterly,  p.  78 
Compensation  of  Members 


Adequate,  p.   173 

Resolution  of  the  Commit- 
tee of  the  Whole,  p.  173 

Report  of  the  committee  of 
detail,  p.  174 


THE  PINCKNEY  DRAUGHT 


In  the  Pinckney  and  Wil- 
son draughts,  p.  175 

Deviation  from  instructions 

explained,  p.  207,  209 
Compensation    of    the    Presi- 
dent. 

Committee's  draught  disre- 
gards the  12th  Resolu- 
tion, p.  209 

Follows    Pinckney 's 

draught,   p.   210 
Compromises,     The,     of     the 
Constitution. 

Neither  Madison  nor  Pinck- 
ney attempted  a  compro- 
mise, p.  265 
Conclusions. 

Final    conclusions     on    the 

whole  case,  p.  273 
Confederated  States 

Bankrupt  and  drifting  to- 
wards war,  p.  249 

Helpless  as  against  the 
States,  p.  251 

Dependent  upon  voluntary 
contributions,  p.  265 

Could   not    enforce   treaties 

on  States,  p.  265 
Congress. 

See  Election  and  Eligibility. 
Constitution,  The. 

Its  four  germinal  stages,  p. 
66 

Methods  for  consideration 
of,  p.  67,  68 

Birth  of,  p.  71 

References  to  Committees, 
p.  69,  70,  78 

The  work  of  the  Committee 
of  Style,  p.  78 

Estimate  of  in  1818,  p.  25, 

27 
Convention,  The. 

Surviving  members  of,  p. 
24,  202 

Philosophical  methods  of, 
p.  67 

First  days  of  the,  p.  128, 
129,  130 


The  first  business  day,  p. 
135 

The  secrecy  of  the  conven- 
tion, p.  227,  229,  232,  237 

A  lost  paper,  p.  230 

Its   careful   preservation   of 

papers,  p.  287 
Copyright  and  Patents 

Not  in  the  Department 
copy  of  the  draught,  p. 

But  Pinckney  the  author  of' 
those  constitutional  pro- 
visions, p.  271 

Copyright  cases,  p.  206 
Council  of  Revision 

Considered,  p.  46,  47,  50,  51 

Pinckney's  action  regard- 
ing it,  p.  50 

Delicate. 

The  word  as  used  by  Mad- 
ison, p.  36 

Draught  of  Committee  of  De- 
tail 

Reported  by  committee,  p. 
70 

Description  of,  p.  71,  72, 
234 

Washington's  copy  of,  p.  74 

The  notes  by  Major  Jack- 
son, p.  74 

Agreement  with  Pinckney's 
draught,  p.  79,  81,  255, 
273 

The  "  divide  "  in  the  march 
of  the  framers,  p.  76 

The  compromises  subse- 
quent to  the  draught,  p. 

Sparks'    analysis    of    it,    p. 

JL4y 

Sparks'  test,  p.   153,   156 
Madison's       non-reply       to 

Sparks,  p.  155,  156 
The     misplacing     of     veto 

power,  p.  183,  220 
The   treason    provisions,   p. 

185,  221 


326 


INDEX 


The  Supreme  Court  juris- 
diction clause,  p.  191 

The  draught  not  yet  writ- 
ten, p.  203 

The  preamble  taken  from 
Pinckney,  p.  214 

How  the  committee  fol- 
lowed Pinckney,  p.  215 

The  committee  overrule 
Wilson,  p.  222 

Limit  of  time  for  prepar- 
ing, p.  232,  235,  248 

Engrossed  on  Pinckney's  as 
copy  for  printer,  p.  236, 
241 

"Delivered  in"  figurative- 
ly, p.  236 

The  most  important  docu- 
ment of  the  convention, 
p.  226 

Printing  of  the  draught,  p. 
233 

The    real    authors     of    the 

draught,  p.  165 
Draught  of  Pinckney 

Presented  to  the  conven- 
tion, p.  429 

Lost,  p.  4,  224 

The  Department  copy,  p.  4 

Description  of,  p.  16 

Madison's  Note  to  the,  p. 
58 

When  written,  p.  86 

The  term,  "  The  law  of  the 
land,"  p.  179 

Provisions  described  in  the 
Observations,  p.  182 

The  misplacing  of  the  veto 
power,  p.  183,  220 

The  militia,  p.   188 

Randolph  recognizes  and 
uses,  Art  11,  p.  196 

Article  11  described  in  the 
Observations,  p.  198 

Publicity  attending  Pinck- 
ney's draught,  p.  201, 
274 

Used  as  printers'  copy  and 
destroyed,  p.  236 


Never  discussed  in  conven- 
tion, p.  257 

Exaggerated  value  set  upon 
it,  p.  258 

Provisions  not  adopted  by 
the  committee,  p.  268 

Provisions  not  in  the  De- 
partment case,  p.  271 

Provisions  rejected,  p.  263 

Its  inferiority  in  detail  to 

the   committee's,   p.    153 
Draught  of  Randolph. 

Description  of,  p.  161 

The  annotations  of  Rut- 
ledge,  p.  164 

Compensation  of  Senators, 
p.  163 

The  joint  work  of  Ran- 
dolph and  Rutledge,  p. 
165 

A  disheveled  draught,  p. 
190 

Jurisdiction  of  the  Supreme 
Court  in,  p.  191 

Recognizes  and  uses  Pinck< 

ney's  Art.   11,  p.    196 
Draughts  of  Wilson. 

His  three  draughts,  p.  160 

Description  of  his  3d,  p. 
161 

The  annotations  of  Rut- 
ledge,  p.  161 

Wilson's  preamble,  p.  166, 

Charges  against  Pinckney, 
p.  168 

The  word  "our,"  p.  169, 
171 

Articles  which  are  not  Wil- 
son's, p.  182 

The  proper  placing  of  the 
veto  power,  p.  183,  220 

The  treason  provisions,  p. 
185,  221 

The    militia    provisions,    p. 

188 

Draught,  rough. 
What  it  is,  p.  20 
Pinckney's      not     a     rough 
draught,  p.  10,  11 


327 


THE  PINCKNEY  DRAUGHT 


Wilson's  rough  draught,  p. 

166 
Duer,  William  A. 

Madison's   letter  to,   p.   36, 

45 
His  position  in  New  York, 

p.  45 

Election  of  Representatives 

By  the  people,  p.  9,  85,  91, 
93,  94,  95,  97 

Pinckney's  change  of  mind, 
p.  85,  87,  94,  96 

Agreement  of  Articles  III 
and  V  with  Observa- 
tions, p.  90,  93, 

Vote  of  convention,  p.  95 
Election    of   the    President. 

Madison's  strictures  on  the 
draught,  p.  60 

Article  VIII  does  not  pro- 
vide a  method,  p.  97 

The  omission  not  remarka- 
ble, p.  98 

Choosing  by  the  electoral 
colleges,  p.  77,  133 

Observations    sustain    Arti- 
cle VIII,  p.  134 
Eligibility  of  Representatives, 
etc. 

Pinckney   on   the   question, 

p.   101,  103 
Elliott,  W.   S. 

A  grandnephew  of  Pinck- 
ney, p.  288 

His    sketch    of    Pinckney's 
life  and  home;  of  his  li- 
brary,     picture      gallery 
and  garden,  p.  288 
Ellsworth,  Oliver 

Did  not  draught  a  constitu- 
tion, p.  165 

Contributed       nothing       to 
draught   of   the   commit- 
tee, p.  165 
Estoppel. 

Characterized  by  Coke,  p. 
132 


Does  not  extend  to  histor- 
ical students,  p.  132 
Federalists. 

Hamilton      and      Pinckney 
were,  p.  279 

Pinckney  the  most  extreme 
federalist  in  the  conven- 
tion, p.  279 
Ford,  Worthington  C., 

Publishes  Pinckney's  letter, 

p.  5  , 
Framers  of  the   Constitution. 

Two    of    the    youngest    and 

their  work,  p.  264 
Franklin,  Doctor. 

His   farewell   words   to  the 

convention,  p.  70 
Fraud  and  Plagiarism. 

The  question  of  inexorable, 
p.  21 

Detection  probable,  p.  24 

Temptation  small,  p.  25 

The   absence    of   motive,   p. 
27,  28 

Specifications      of      plagia- 
risms, p.  78 

Failure  of  specified  charges, 
p.  79 

Not  sustained  by  evidence, 
p.  275 

The   charge   reduced  to   an 
absurdity,  p.  195 

Gerry  of  Massachusetts 

Opposes  election  by  the  peo- 
ple, p.  87 
Gilpin,  Henry  D., 
Edits  Madison's  Journal,  p. 

5,  29 

Gorham  of  Massachusetts. 
A  member  of  the  committee 

of  detail,  p.  75 
Did  not  attempt  to  draught 

a  constitution,  p.  165 
Grimke,  Thomas  S. 

Madison's  letter  to,  p.  35 
Habeas  Corpus. 
The  writ  of,  not  to  be  sus- 


328 


INDEX 


pended  is  in  the  draught, 

p.  269 
Why  the  committee  did  not 

adopt,  p.  270 
Hamilton,  Alexander. 

"  Those    who    pay    are    the 

masters,"  p.  174 
His    not    the    style    of    the 

Constitution,  p.  243 
Pierce's        description        of 

Hamilton,  p.  283 
Historical  Questions 

Concerning  the   draught  in 

the  State  Department,  p. 

12 

Historical  Society  of  N.  Y. 
Possesses     Pinckney's     Ob- 
servations, p.  105 
Referred    to    by     Madison, 

p.  110 
Hunt,    Gaillard. 

Description  of  the  draught, 

p.  18 

Immigration. 
Expected   and   relied    upon, 

p.  170 
Massachusetts     constitution 

encourages,  p.   169 
Impeachment. 

In     Pinckney     draught,    p. 

211 
In  the   committee  draught, 

p.  211 
Jackson,  Major  Wm. 

Elected     secretary     of     the 

convention,  p.   129 
His    notes    on    draught,    p. 

74,  75 
His    letter    to    Washington, 

p.  239 

Delivers  papers  of  the  con- 
vention   to     Washington, 

p.  239,  241 


Jameson,  Professor,  J.  Frank- 
lin. 
He    discovers    two    of    the 


Wilson  draughts,  p.  159, 

160 
Jay,  Chief  Justice. 

His    hand    appears    in    the 

constitution        of        New 

York,  p.  243 
Jefferson,  President. 

Madison's  letter   to,   p.   33, 

129 
Jews. 

"The  people  called  Jews" 

address    the    convention, 

p.  241 

Journal,  The,  of  Madison. 
Its  completeness,  p.  40 
Omission       of       Pinckney's 

draught,  p.  40 
Publication  of,  p.  52,  63 
His  best  appreciated  work, 

p.  40 

To  be  edited  by  Mrs.  Mad- 
ison, p.  63 
Edited  by  Henry  D.  Gilpin, 

p.  5,  29 
Madison  method  of  writing, 

p.  122 
Is     the     journal     evidence 

against  Pinckney,  p.  275 
It  must  be  received  as  his- 
tory, p.  277 

King,   Rufus. 

Mr.     Adams'     conversation 
with  King,  p.   145 

King  considered  as   a  wit- 
ness, p.  146 

Pierce's        description       of 

King,  p.  282 
Knox,  General  Henry. 

Washington's  letter  to  him, 
p.  128 

Law  of  the  Land. 

See    Supreme    Law    of    the 

Land. 

Library  company  of  Philadel- 
phia. 
Order  to  the   librarian  di- 


329 


THE  PINCKNEY  DRAUGHT 


recting  him  to   "  furnish 
the    gentlemen "    of    the* 
convention  with  books,  p. 
240 
McLaughlin,  Professor, 

Discovers  a  draught  of  Wil- 
son, p.  158 

Discovers  report  in  confed- 
erated   congress,    August, 
1786,  "written  in  Pinck- 
ney's  own  hand,"  p.  260 
Madison,    President. 

His  troubled  life,  p.  54 

His  failing  memory,  p.  52, 
54,  81 

His  only  alternative,  p.  38 

His  age,  p.  53,  54 

His  failure  to  testify,  p.  38 

His  ignorance  of  the 
draught,  p.  30,  38,  40,  53 

His  "  Note  "  to  the  "  Plan," 
tp.  58 

His  "  editorial  footnote  "  to 
the  "  Note,"  p.  62,  63 

His  charges  against  the 
draught,  p.  63 

His  objections  to  Pinck- 
ney's  draught,  p.  5,  6,  7, 
43,  45,  46 

His  poor  opinion  of  Pinck- 
ney,  p.  32,  53 

Most  diligent  member  of 
convention,  p.  80 

His  letters,  p.  33,  34,  35,  36, 

42,  43,   45,    54,    63,    107, 
108,  109,  110,   129,  214 

His  comparison  of  the 
draught  with  the  Consti- 
tution, p.  143,  156,  157 

His  silence  on  the  primary 
issue,  p.  156 

His  adroit  management,  p. 

43,  157 

Madison  on  the  "  object  of 
the  Union,"  p.  214 

His  and  Pinckney's  the  con- 
structive minds  of  the 
convention,  p.  264 


They  agreed  as  to  State 
legislation,  p.  265,  267 

They  did  not  attempt  to 
frame  a  compromise,  p. 
266 

The  work  of  one  agrees 
with  the  work  of  the 
other,  p.  267 

Their      names      should      be 
closely  associated,  p.  268 
Madison's  Journal.    See  Jour- 
nal. 
Mrs.  Madison 

Her  rescue  of  Washing- 
ton's portrait,  p.  56 

Intended      editor      of      the 

Journal,  p.  63 
Marshall,  Chief  Justice. 

Moulded  the  Constitution, 
p.  27 

His  majestic  judicial  reign, 

p.  37 
Martin  Luther. 

His  resolution  relating  to 
the  "  Supreme  law  of  the 
respective  States,"  p.  179 

His     language     a     compro- 
mise, p.   181 
Massachusetts 

Constitution  furnishes  pro- 
visions for  Pinckney's 
draught,  p.  83,  84,  250 
Massachusetts  and  New  York 
alone  paid  in  full  their 
quota,  p.  249 

Preamble  of  the  Constitu- 
tion derived  from  con- 
stitution of  Massachu- 
setts, p.  169 

The  word  "  posterity  "  un- 
restricted, p.  170 
Meigs,   William  M. 

His  "Growth  of  the  Con- 
stitution/' p.  161 

Reproduces  the  Randolph 
draught  in  facsimile,  p. 
161 

Growth  of  the  Constitution 


330 


INDEX 


cited  and  quoted,  p.   189, 
192 
Militia,  The. 

Pinckney's  draught  a  radi- 
cal departure,  p.  188 

Not  authorized  by  the  con- 
vention, p.  188 

Pinckney's      draught      fol- 
lowed by  Wilson  rejected 
by  the  committee,  p.  189 
Money  Bills. 

Madison  refers  to  them,  p. 
99 

Pinckney's  position  regard- 
ing them,  p.  100 
Morris,  Gouverneur. 

His   correction   of   the   lan- 
guage of  the  Constitution, 
p.  78 
Mystery. 

The  name,  p.  1 

Its  definition,  p.  2 
New    York,    the    Constitution 
of, 

Furnishes  the  veto  power, 
p.  47,  48 

Furnishes  other  provisions, 
p.  83,  84,  216,  218,  250 

New  York  and  Massachu- 
setts alone  pay  in  full 
their  quota,  p.  249 

Notes  and  Memoranda 

Of  Pinckney  and  Madison, 

p.  11 
"Note"     of     Madison     to 

plan  of  Pinckney,  p.  58 
Editorial  footnote  to  same, 

p.  62,  63 

Observations,  The  Pamphlet. 
Cited    by    Madison,    p.    33, 

34,  43,  46,   50,   62 
Cited  by  Pinckney,  p.  90 
When  written,  p.  93,  130 
Description  of,  p.  105 
Madison  interest  in,  p.  107 
Extracts  from,  p.  Ill 


The  Observations,  a  speech 

*  never  made,  p.  122,  126, 
139 

Madison  and  Yates  evi- 
dence, p.  122 

Contradictions  in  it,  p.  126 

Significant  error  in  date,  p. 
127 

Considered  as  a  speech,  p. 
131 

Considered  as  evidence,  p. 
132 

Confirm  Articles  III,  V, 
VIII,  p.  132,  135 

Explanation  of  Pinckney's 
publication,  p.  135 

Why  speech  was  not  deliv- 
ered, p.  137 

Why  published,  p.  138 

Why  Observations  were  not 
cited  in  Madison's 
"Note,"  p.  140 

The  Observations  fateful, 
p.  141 

They  sustain  the  copy  in 
the  State  department,  p. 
139 

Articles  in  the  draught  de- 
scribed in  the  Observa- 
tions cannot  be  ques- 
tioned, p.  182,  189,  198, 
253,  269,  270 

Article  11  referred  to  by 
Randolph  described  in 
the  Observations,  p.  198 

Patents.     See    Copyright. 
Paulding,  James  Kirke. 

Memorandum     for,     p.     34, 

42,  107 

Letters  to,  p.  43,  108 
Friend   of   Madison,   p.   44, 

45 

Phenomenon,    The,    of    Madi- 
son, p.  46,  53,  80 
Pinckney,  Charles. 
His  official  life,  p.  23 
His  age,  p.  88 


331 


THE  PINCKNEY  DRAUGHT 


Why  he  presented  the  Ob- 
servations, p.  135 

His  strategic  purpose,  p. 
137 

Why  he  published  the  Ob- 
servations, p.  138,  142 

Desired  the  supremacy  of 
the  national  government, 
p.  181,  279 

He  alone  formulated  a  con- 
stitution before  the  con- 
vention met,  p.  189 

His  misplacement  of  the 
veto  power,  p.  183 

The  style  of  the  Constitu- 
tion, p.  243,  245 

His  draught  the  only  one, 
p.  249 

His  method  of  construc- 
tion, p.  250 

His  composite  work,  p. 
250,  251,  252 

His  generality  of  treatment 
and  expression,  p.  253 

A  condemned  and  misrepre- 
sented man,  p.  254 

His  training  and  prepara- 
tion, p.  261,  264 

What  he  did  and  failed  to 
do,  p.  261 

His  co-operation  with  Mad- 
ison, p.  264,  265,  267 

His  family,  position,  etc.,  p. 
278 

His  speech  of  June  25,  p. 
278 

The  extremist  federalist 
in  the  convention,  p.  279 

Pierce's  description  and  es- 
timate of  him,  p.  281, 
284 

The    destruction    of    every- 
thing     which      Pinckney 
possessed,  p.  285 
Pinckney,       Charles       Cotes- 
worth, 

Opposes  election  by  the 
people,  p.  88 

Proposes  that  no  salary  be 


332 


allowed    to    Senators,    p. 
176 

Living  in  1818,  p.  24 

The   most   esteemed   citizen 

in  S.  C.,  p.  88 
Pinckney's  Letters 

To  Secretary  of  State,  p.  8, 
12,  26,  27 

Contemporary  declaration, 
p.  10 

Letter  to  Madison,  p.  62 
Pierce,  William. 

His  narrative  of  a  lost  pa- 
per in  the  convention,  p. 
230 

His     description     of     Ran- 
dolph,    King,     Hamilton 
and  Pinckney,  p.  281 
Preamble  of  the  Constitution. 

Suggested  by  the  Articles  of 
Confederation,  p.  169. 

Derived  from  Constitution 
of  Massachusetts,  p.  169 

Randolph  attempted 
draught  of  preamble,  p. 
162 

Wilson  attempted  draught 
of  preamble,  p.  166 

The  preamble  in  the  com- 
mittee's draught,  p.  168 

It  declared  the  source  and 
supremacy  of  authority, 
p.  213 

Ignored  State  governments, 
p.  213 

The  preamble  unquestioned 
in  the  convention,  p.  215 
President,  The. 

See  Election  of. 
Printers  —  Copy. 

Pinckney   draught    used   as 
printers'     copy.     p.     188, 
'  208,  237 


Randolph,  Edmund. 

The     Virginia      resolutions 

cited  as  his,  p.  68 
Opens  the  main  business  of 


INDEX 


the    convention,    p.    130, 

136 

His  draught  of  the  Consti- 
tution, p.  158,  161 
Read,  George. 

Letter     to     Dickinson     on 

Pinckney's  draught,  p.  89 
Ritchie,  Thomas. 

Madison's  letter  to,  p.  63 
Rutledge,  John. 

Present  in   the   convention, 

May  29,  p.  135 
Seconds    Pinckney    motion 

to    strike    out    the    word 

people   and   insert  Legis- 
latures, p.  95 
Chairman  of  the  Committee 

of  Detail,  p.  75 
"  Delivers  in  "  the  report  of 

the  committee,  p.  70 
His     annotations     on     the 

other    draughts,    p.    162, 

164,  182 
He  co-operates  with  Wilson 

and  Randolph,  p.   164 
Used      Pinckney      draught 

when  annotating,  p.  182 
His     ruthless     slashing    of 

Wilson's,  p.  161 
His  43  amendments,  p.  161, 

204 
Strongest  man  in  the  State, 

p.  88 

Secrecy. 

The  resolution  of  the  con- 
vention, p.  228 

Secrecy  to  continue  after 
the  dissolution  of  the 
convention,  p.  228 

Silence  of  members  from 
May  29  to  September  17, 


p.  229 

Washington  recognition  of 
the  obligation,  p.  229 

The  obligation  required 
that  the  draught  be  not 
lost,  p.  232 

Pinckney   draught   used  as 

333 


printers'   copy  and   scru- 
pulously     destroyed,      p. 

237 
Legal  presumption   that   it 

was  destroyed,  p.  237 
Secrecy    of    Committee    of 

Detail,  p.  75,  200,  237 
Senate. 

Pinckney's    Senate,    p.    91, 

217 
To      appoint     ambassadors 

and  judges,  p.  102 
South  Carolina. 

The  State  postpones  action 

in  the  convention,  p.  175 
South  Carolina  Gazette. 
Draught  republished  in,  p. 

274 
Sparks,  Jared. 

Writes   to   Madison,   p.   42, 

43,  144,  146,  147,  149 
Madison  to   Sparks,  p.  35, 

42,  43,   110 
His  opinion  of  the  draught, 

148,  152 

His  correct  analysis,  p.  152 
His    most   delicate   test,    p. 

153 
Story,  Mr.   Justice. 

Ignores  the  Draught,  p.  6, 

8,  12 

"  Supreme  Law  of  the  Land." 
History  of  the  term,  p.  179. 
The  case  of  Trevatt  v. 

Weeden      gives      judicial 

significance  to  it,  p.  182 
Derived  from  resolution  of 

Congress,  p.  251 


Thomson,  Doctor  William  H. 
Definition  of  mystery,  p.  2 


Time. 


The  second  condition  im- 
posed on  the  committee, 
p.  232 

Two  of  these  days  were 
Sundays,  p.  233 

Three  days  required  for 
printing,  p.  234 


THE  PINCKNEY  DKAUGHT 


200     constitutional     provi- 
sions framed  and  printed 
within  the  limited   time, 
p.   234 
Treason. 

The  punishment  of  treason, 
p.  185 

How  defined,  etc.,  in  the 
three  draughts,  p.  186 

Caution  of  Rutledge  and 
Pinckney,  p.  186 

Their    provisions    combined 
in    the    Constitution,    p. 
187 
The  Treaty  Making  Power. 

Lodged  in  the  Senate  ex- 
clusively, p.  210 

Not  authorized  by  the  con- 
vention, p.  211 

Committee  of  detail  fol- 
lowed Pinckney  errone- 
ously, p.  211 

Veto  Power,  The. 

Taken  from  the  constitution 

of  New  York,  p.  47 
Misplaced  by  Pinckney  and 

by  the  committee,  p.  183, 

220 
Correctly  placed  by  Wilson, 

p.     183 

Washington,  General,  The. 
Madison's  letters  to,  p.  33, 

34 
His  copy  of  the  committee's 

draught,  p.  74 
Letter  to  Congress,  p.  54 
His  illness,  and  the  illness 

of  his  mother,  p.  128 
His  journey  to  Fredericks- 
burg,  p.  128 
His  arrival  in  Philadelphia, 

p.  129 
President  of  the  convention, 

p.   129 
Letter  to  General  Kncrx,  p. 

128 


Made  custodian  of  the  rec- 
ords, p.  228,  239 

His  sense  of  the  obligation 
of  secrecy,  p.  229 

Extracts  from  his  diary,  p. 
229 

His  admonition  to  the  con- 
vention, p.  230 

The  convention's  daily 
mark  of  respect,  p.  230 

Extracts  from  his  diary  of 

September   17,  p.  239 
Washington,  City. 

Capture  of,  56 

Burning  of  the  Capitol,  p. 

oo 

Wilson,  James. 
His   draughts   of  the   Consti- 
tution, p.  158 

Intelligent  and  wise,  p.  159 

Opposed  the  payment  of 
representatives  by  the 
States,  p.  175,  176 

His  proper  treatment  of  the 
veto  power,  p.  183 

His  careful  and  logical 
work,  p.  165,  187 

Alien  member  of  the  con- 
vention, p.  199 

A  judge  of  the  Supreme 
Court,  p.  200 

The  hard-worker  of  the 
convention,  p.  204 

A  signer  of  the  Declara- 
tion, p.  171 

He  first  suggests  the  Elec- 
toral Colleges,  p.  77 


Yates,  Robert. 

Entry  in  his  minutes,  p. 
29,  122 

Report  of  Pinckney's 
speech,  p.  30 

His  age,  position  and  ex- 
perience, p.  124 

Value  of  his  minutes,  p. 
125 


334 


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